Update: McCainalanche and a Hogelanche. Cool beans.
So yesterday I drove up to Maryland in order to observe today’s hearing in John Hoge v. Bill Schmalfeldt. As regular readers will know, Schmalfeldt is facing five different criminal charges related to his harassing conduct towards Lee Stranahan and Mr. Hoge, and Mr. Hoge decided to file for a peace order against Mr. Schmalfeldt.
As for the cast of characters, Brett Kimberlin did show up. Whereas normally he made sure to wear a professional suit and usually had his hair short, this time he was dressed in a ratty looking coat and his hair was long and disheveled. The thought that immediately came to mind was that he looked like a homeless man and Mr. Hoge concurred later. Previously I told Mr. Hoge to be ready for Mr. Kimberlin to attempt to intervene in the case. After I saw Kimberlin in this state, I told Hoge that I doubted Kimberlin would attempt to intervene.
It is also worth noting that at one point he passed me in the hallway outside the courtrooms literally with only inches separating myself and him. He did this deliberately and I believe without thinking. This was a man who previously claimed that he lives in terror that I would supposedly attack him, proving that even he didn’t believe I was a physical threat. As if you needed more convincing on that point...
Also Neal Rauhauser did not show up. He has oddly gone into radio silence since yesterday. Some rumors are swirling around as to why, but we can only speculate.
Mr. Hoge represented himself and did so pretty ably, given that he is not a lawyer himself (although his father was one). We bumped into the State’s Attorney afterward, and he concurred that Hoge represented himself well, but suggested that if he went from engineering to law, he would suffer a pay cut. Fair enough.
Mr. Schmalfeldt was represented by an attorney. I will only identify him as Mr. Kim because I see no reason to draw unwanted attention to the man. If any legitimate journalists wish to know more, I will be happy to share. Despite having repeatedly claimed that he had a legal team, it was clear that that Schmalfeldt had never met the man before. Indeed the trial was delayed as they spoke in the corridor to prepare their defense.
As for the case itself, regular readers know that I have become a bit of an expert on Maryland Peace Order and Harassment law. You might remember that there is no harassment under Maryland law until and unless that person is first told to stop. And I never said as much, but it is reasonably implied that the person must actually receive the notice to stop. Bill Schmalfeldt lied and claimed to have not seen the notice. I have seen him respond to Mr. Hoge’s request to stop contact. But Mr. Hoge didn’t have the proof with him at the time.
But Judge Rasinsky was the most professional district court judge I had seen so far in Maryland. For instance, he followed the rules of evidence far more closely than any of the district court judges so far, something that would have probably put Brett Kimberlin’s lawfare to an end long ago. Without proof that Schmalfeldt had been informed on February 15 to stop, the judge was left with determining if any conduct after Schmalfeldt was served counted as harassment. Hoge brought up some of Schmalfeldt’ comments on his radio show discussing the “Ides of March” threat and the judge said because it was the only incident he could bring up, it did not constitute by itself, a course of conduct. A course of conduct requires at least two acts. So the judge denied the peace order, as in fact he has to do. That is the law.
But it was exceedingly clear that the judge believed that the prior conduct would be harassment if we could prove Schmalfeldt has been told to stop. It was a particularly special moment in court when Schmalfeldt was forced to read in open court some of the vile things he had written about Mr. Hoge, particularly when he talked about Hoge needing to comb the “poop flakes” from his beard. But the judge was constrained by, or more precisely he let the law constrain him and he couldn’t find any harassment since the first day Hoge could prove he was notified, which was when the Temporary Peace Order was issued.
But it was equally clear that any further contact like this would cause problems. As judges often do, he took a moment to advise Mr. Schmalfeldt. Judges aren’t supposed to give legal advice and the judge would probably deny giving him legal advice, but yeah, its pretty much what he did. He said that Hoge had made it clear to Schmalfeldt that he wanted to be left alone, that he was okay with Schmalfeldt talking about him (as long as it wasn’t threatening, etc.), but that tweeting to “@wjjhoge” or emailing him would be harassment. He said something close to, “you aren’t going to need to contact Mr. Hoge again, will you?”
And at that point, Mr. Schmalfeldt raised his argument that as an alleged journalist he had the right to contact subjects of his stories for comment. He even rolled out that “my Daddy always taught me that if you say something about someone and you are confident about it, you should stay it to their face.” That isn’t an exact quote, but I believe when we get a transcript you will see it is very close. The judge utterly rejected that argument, saying that the harassment statute did give Mr. Hoge the right to say “stop contacting me” even if you are a journalist. You will just have to write your stories without contacting your subjects (and he certainly hasn’t hesitated to do so in the past) It was exceedingly clear that if Mr. Hoge had the proof that day that Mr. Schmalfeldt had seen the request to stop, he would have found harassment occurred and granted the peace order.
And it is clear that his attorney got the message. Earllier in the case, I had introduced myself to him as a fellow member of the bar. He was very glib, saying something to the effect that this was the most ridiculous case he had ever heard. And it was even in some ways his defense, arguing to the judge that this was a bunch of internet silliness. But after the hearing, he took a very different attitude, as he stood in the hallway after the hearing. I observed him reading his client the riot act. I heard Schmalfeldt protesting that as a journalist he had a right to contact us, and Kim was telling him (correctly) that this had nothing to do with the law. The law protects the dissemination of information, not the gathering of it. Further he told them that if he continued this conduct “you will go to jail.”
(As a sidebar, I have been told that Schmalfeldt is ridiculously claiming that I am quoting from a private conversation with counsel. No, I was quoting from a public and indeed fairly loud conversation he had with counsel in the hallway outside the court as I walked by. I didn’t intentionally listen in, but there was no way I couldn’t hear it. If he wanted to have a private conversation, he should have gone somewhere private to have it.)
So what to explain the change in Kim’s demeanor? Well, the first possibility is that Kim was putting on an act of believing the case was silly and what I caught after the hearing was Kim letting down the mask and “lowering the boom” on his client. The other possibility is that Mr. Schmalfeldt made the classic defendants’ mistake of not telling your lawyer the truth, the whole truth and nothing but the turth. So he originally thought it was ridiculous, because his client didn’t tell him enough to make him realize how serious it was. Then as time went on, he began to realize that his client really was in jeapordy. That would be theory #2 and I am unsure of which is the correct theory.
So bottom line, Schmalfeldt won but it was a pyrrhic victory. First, he won on a technicality, that absolutely won’t apply in Lee’s situation, or my own should I choose to prosecute. He can’t claim Lee never told him to stop and in my case, when I told him to stop by email, he replied to that email with insults. So realistically, as a preview of Lee’s case, we now know it is an absolute slam dunk. None of his defenses worked and the only thing that did work—claiming he never received the notification—won’t work with Lee. He should be, at this point, very, very concerned.
But is he? I am hearing word that he is pretending that this vindicates his defenses and so on, and that his lawyer’s advice was wrong. But here is the real test, folks. Go check his twitter feeds and see if he continues to mention us using “@aaronworthing,” “@stranahan” or “@wjjhoge.” See if he keeps emailing us after we told him to stop (I will keep you updated). See if he keeps threatening us on his radio show. If his behavior changes, it is a silent admission that he knows he is in trouble. So time will tell.
Sidebar: so who hired Kim to be Schmalfeldt’s attorney? Schmalfeldt lives in a trailer park, so it seems unlikely that he has some great font of savings. And indeed the fact this was the first time Schmalfeldt was meeting him also suggested that someone else had hired him for Schmalfeldt. So the question is, who did this?
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.
Why could Mr. Kim not be a public defender? Or has that been established?ReplyDelete
As I said at the time, unless BS is an idiot, today's court proceedings should have him scared. The proof that he realizes this is he is now using hash tags instead of mentions when talking about Stranahan or Aaron Worthing. If he wasn't worried he would still be using @stranahan and @aaronworthing.ReplyDelete
Now, I don't see him stopping talking about people on his blog talk radio...it was only harassment because he was using direct contact to put out the direct link to the show, wasn't it?
It goes back to the difference between saying #MonitorAccess is a schmuck and @MonitorAccess is a schmuck. The first I have to go looking for, the second is sent directly to me on twitter.
So you can use everything up to today when he stopped using the @ mentions to establish a course of conduct, unless he goes back to using the @ mentions again everything after today doesn't follow.
Oh, I suspect that BS will attempt to direct comments about and towards his targets on his radio show that are carefully crafted to sound menancing ["Beware the Ides of March!]" without technically being threats. Unfortunately for BS, his understanding of where exactly that line is, and how close he can skirt the line aren't rooted in reality. Expect him to cross the line within a week, or two.Delete
Bill was told to stop contacting Mr. Hoge when he was using the @OldUncleBastard account. The very next day Bill switched back to his LiberalGrouch account. Bill knew Mr. Hoge told him to stop, he lied.ReplyDelete