Judge Jones to Bill Schmalfeldt: This is Your Fourteenth Last Warning, and Pink Floyd’s Last Farewell Tour

...And Other News From Brett Kimberlin’s Brass Knuckles Reputation Management

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 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, Patrick “Patterico” Frey, Mandy Nagy, Lee Stranahan, Erick Erickson, Breitbart.com, the Blaze, Mercury Radio Arts, Red State, the National Bloggers Club, and  others 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.

"Why the young woman in this pic? She looks too young to
have even been conceived in '82...

I will keep this short because I have several things going on in life.  Of course the title is not literal: it is sarcastic.  It is hard to say which we have seen more of: “last” warnings by the courts to Bill Schmalfeldt or Rolling Stone “Farewell Tours."

Today there was a hearing in the case of Maryland v. Schmalfeldt.  As regular readers might remember, John Hoge had obtained a peace order against Schmalfeldt forbidding, among other things, any form of contact.  Well, Schmalfeldt had emailed John shortly after he revealed his wife had cancer. The facial motive was to give John advice, but 1) one has to suspect that his real reasoning is that this was a way to yank John’s chain, and 2) the order doesn’t allow for any exceptions that cover that.

Schmalfeldt did reasonably make the point that, say, if John was in danger of being hit by a falling safe, he could shout “watch out” without violating it.  Both he and the judge failed to understand they were talking about the classic defense of “necessity.”  This is very similar to self-defense and defense of others, but it is about forces of nature or similar instances where a person is not trying to hurt you, but a danger nonetheless exists.  To quote from the Maryland Court of Special Appeals:

The Court noted five elements necessary to consider before applying the defense of necessity:

"1 — The harm avoided — this need not be physical harm but also may be harm to property as, for instance, where a firefighter destroys some property to prevent the spread of fire which threatens to consume other property of greater value.

2 — The harm done — this is not limited to any particular type of harm but includes intentional homicide as well as intentional battery or property damage. An illustration is supplied:

`[A]s where A, driving a car, suddenly finds himself in a predicament where he must either run down B or hit C's house and he reasonably chooses the latter, unfortunately killing two people in the house who by bad luck happened to be just at that place inside the house where A's car struck — it is the harm-reasonably-expected, rather than the harm-actually-caused, which governs.'

3 — Intention to avoid harm — to have the defense of necessity, the defendant must have acted with the intention of avoiding the greater harm. Actual necessity, without the intention, is not enough. However, an honest and reasonable belief in the necessity of his action is all that is required.

4 — The relative value of the harm avoided and the harm done. The defendant's belief as to the relative harmfulness of the harm avoided and the harm done does not control. It is for the court, not the defendant, to weigh the relative harmfulness of the two alternatives. To allow the defense the court must conclude that the harm done by the defendant in choosing the one alternative was less than the harm which would have been done if he had chosen the other.

5 — Optional courses of action; imminence of disaster. The defense of necessity applies when the defendant is faced with this choice of two evils: he may either do something which violates the literal terms of the criminal law and thus produce some harm, or not do it and so produce a greater harm. If, however, there is open to him a third alternative, which will cause less harm than will be caused by violating the law, he is not justified in violating the law. For example, "[a] prisoner subjected to inhuman treatment by his jailors is not justified in breaking prison if he can bring about an improvement in conditions by other means.""

So the finder of fact would weigh those factors, and yes, in Schmalfeldt’s hypothetical it would probably not be a crime to contact him.  But notice we are talking imminent danger, not “several months from now.”  This is precisely the argument I had with Mona Eltahawy’s attorney a while back, and he was wrong, too.

Anyway, the bottom line was that Schmalfeldt was found not guilty.  The judge’s reasoning is that Schmalfeldt lacked the necessary criminal intent.  This is frankly contrary to law.  The intent that you need to prove in most cases is what is called “general intent” and is discussed in general in this case.  But the bottom line is that unless there is a special intent needed to commit a crime (such as, assault with intent to rape, as opposed to simple assault by itself), the only intent that needs to be proven is that you actually meant to do it.  It means, more or less, not accidentally.  For instance, if Bob points a gun at Sam and pulls the trigger, the law generally assumes he meant to actually cause Sam to be shot and all that ordinarily follows from being shot.  There are exceptions, obviously.  For instance, if Bob could proof he had sneezed and unintentionally pulled the trigger, that would negate general intent.  Or if Sam was hiding behind a curtain and Bob didn’t know he was shooting at anyone.  Or if Bob accidentally drew a gun thinking he was drawing a taser.  Of course murder typically requires specific intent, not general intent, but I am using the example of a gun for illustrative purposes.

Bill Schmalfeldt hard at work on his
latest book...

So unless Bill Schmalfeldt wants to say he is a million monkeys at a million typewriters, he obviously intentionally sent that email to John.  Therefore the judge’s ruling was incorrect as a matter of law.

But none of this is surprising to me.  You see on Tuesday I learned that Joann Ellinghouse-Jones was going to be hearing the case and the moment I heard that name, I suspected that she would find some way to tank this case.  I had seen her on this issue before.  She was the same judge who refused to grant John a peace order against Schmalfeldt in March of 2013 on the cockamamie theory that somehow electronic harassment was not also harassment under the general harassment statute.  She was not literally overturned by Judge Stansfield in Circuit Court, but Schmalfeldt tried the same argument there and he rejected it—correctly, in my opinion—granting the first peace order against Schmalfeldt.

At the time, I remember that the judge thought the entire situation was “ridiculous.”  I think if she could be persuaded to speak candidly, she would say she thought this was just a case of two old men arguing on the internet and not worth the court’s time in the first place.  I think that underestimates the pathology of Bill Schmalfeldt, but then again it takes time to show that to her.  I always suspected that her ruling that electronic harassment could not trigger a peace order was more based on her “gut feeling” that the case was silly, than any studious examination of the law.  Today’s ruling solidifies my intuition.

I think in all bluntness what we witnessed was a bit of what I call “judicial civil disobedience.”  Traditionally civil disobedience means an intentional violation of the law because you don’t agree with the law.  I think she didn’t agree with this law, at least as applied, so... she didn’t follow it.  It’s not what I would rule, but there it is.

That being said, knowing he had violated it, she gave him the clearest warning possible to cut it out.  She literally said to Schmalfeldt that he should just forget that John exists.  Which is all well and fine but we are up to how many final warnings?  At some point a final warning has to be final, as in the next time it happens, some consequences need to follow.  If I was Schmalfeldt’s lawyer, I would tell him that he really just needs to disengage, but then again his actual lawyer told him that years ago and he hasn’t listened yet.

Another thing his press team is saying is that Judge Jones ruled that the peace order was invalid.  Now, for starters, there is a legitimate issue there.  I won’t bore you with all the details, but a peace order is only supposed to be issued for up to six months, with the possibility of a single six-month extension.  And the one at issue was issued for a year, which is more typical of a domestic violence protective order—which is similar to a peace order, but not identical.  That is incorrect as far as it goes, but there are two problems with that as an argument for the defense.  First, the way to challenge the peace order was to take it up with the circuit judge and potentially the court of appeals and Schmalfeldt didn’t pursue any of that.  Second, the violation occurred within the first six months of the peace order, meaning in the time when it validly applies.  So it was a frivolous objection.

(Incidentally the Circuit Court interpreted the order as only applying for six months and closed the case when the six months expired...  until John reopened it today.  Why and how was it reopened?  Well, dear reader, you will have to wait to find out.  Sorry, but we don’t want to spoil the surprise for Schmalfeldt.)

But this is typical for Team Kimberlin.  A judge expressing doubt on a subject becomes, in their mind, a ruling against it.  But Judge Jones very specifically didn’t rule.  She said she couldn’t overturn the Circuit Court’s order and she is right.

Another highlight is that early on in the case, Schmalfeldt asked to plead guilty by reason of diminished mental capacity.  Last night “Kimberlin Unmasked” joked that he should plead insanity, and this was kind of close:

Still, this is apparently a bogus plea in Maryland, though it might work in other states.  There is a plea of not guilty by reason of insanity or mental retardation.  To quote from Md. Code Crim. Proc. §3-109:

§ 3-109. Test for criminal responsibility

(a) In general. -- A defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity to:

(1) appreciate the criminality of that conduct; or

(2) conform that conduct to the requirements of law.

(b) Exclusions. -- For purposes of this section, "mental disorder" does not include an abnormality that is manifested only by repeated criminal or otherwise antisocial conduct.

Now, while Bill Schmalfdelt admits to having dementia, and he is pretty dumb, he simply doesn’t meet this legal test.  In any case, Judge Jones said that if he was pleading insanity, then the case would be delayed while they let the Department of Health and Mental Hygiene evaluate him.  And suddenly he decided he didn’t want to do that.  Still, I believe he is claiming in his civil suit against John and others it is defamation to claim he is deranged, and it seems likely that this will come back to haunt him in that suit.

I will also say that the judge was pretty horrified by Schmalfeldt’s behavior in general.  For instance, at several points he started shouting in the courtroom.  And at another point he says, “may I ask how she is doing?” meaning John’s wife.  The judge said, “no, you may not.” And then after a moment she added, “good grief!”  At another point, Schmalfeldt says that his Parkinson’s makes him “impulsive” which lead her to give the prosecutor a “he’s crazy look” as she mouthed the word “impulsive.”  There were even moments when one bailiff moved sat in his chair as though he was ready to charge and tackle Schmalfeldt, if necessary.

So yes, a win, and I am sure chastened by his brush with criminal sanctions Schmalfelt will start to obey the law and stop harassing people and start to live a good...

...who are we kidding?  He is going to keep doing it, no doubt, until he is literally put in prison.  I mean I would be happy to be wrong, but what in his past conduct would lead a person to believe he is capable of such self-awareness and personal growth?

And briefly, some more news from the world of Brett Kimberlin’s brass knuckles reputation management.

First, Brett filed a notice of appeal from the dismissal of the RICO case.  You can read it, here.

Second, Patrick “Patterico” Frey answered the part of the RICO case that remains against him (now just a civil rights complaint).  For those who don’t know, the process goes like this.  First a complaint is filed with numbered paragraphs.  Second, there are any motions to dismiss that are filed.  Then if they are denied, you answer the complaint, answering each allegation as admitted, denied, or that you lack sufficient information.  So if you take the second amended complaint and compare it to his answer you can see what he is denying.  This doesn’t matter very much except to narrow down the areas of genuine disagreement, and of course if he suddenly admitted to anything damning it would be significant, but he didn’t so it is not.  Still there is fun to be had, such as:

147. All the allegations of the corresponding paragraph, including the allegation that plaintiff is a musician, are denied.

Yeah, it’s hard to argue with this:

Also:

152. Denied, except admitted that plaintiff has relationships with the some of the most repressive and barbaric regimes in the world.

"Wow, Brett's music is terrible."
"What a loser!"
"Our cat ran under the bed when we played that song."

Finally, as you might remember, I reported that Brett filed a bogus suit against Home Depot.  Well, now they have removed the case to federal court.  My suspicion is that next they will try to change the venue to Georgia.  You can read about that, here.

And before you ask, no, they did not draw Judge Hazel again.  This judge has never dealt with Brett before (as far as I know).

So a decidedly mixed day in the fight against Team Kimberlin.  Schmalfeldt won, obviously, while Brett didn’t have a particularly good day with federal courts.  Stay tuned, and keep the popcorn warm.

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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.