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This is the second, and as of this writing, official transcript in the Maryland state case of Kimberln v. Walker. Get the whole story at http://allergic2bull.blogspot.com/
This is the second, and as of this writing, official transcript in the Maryland state case of Kimberln v. Walker. Get the whole story at http://allergic2bull.blogspot.com/
This is the second, and as of this writing, official transcript in the Maryland state case of Kimberln v. Walker. Get the whole story at http://allergic2bull.blogspot.com/
WHEREUPON, the proceedings in the above-entitled matter commenced BEFORE: THE HONORABLE ERIC JOHNSON, JUDGE APPEARANCES: FOR THE PLAINTIFF: BRETT KIMBERLIN Pro Se 8100 Beech Tree Road Bethesda, Maryland 20817
FOR THE DEFENDANTS:
PATRICK OSTRONIC, Esq. 932 Hungerford Drive Suite 28A Rockville, Maryland 20850
I N D E X
Page
Jury Selection 114
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P R O C E E D I N G S THE COURT: Parties identify yourselves for the record, please. MR. KIMBERLIN: Brett Kimberlin, plaintiff, pro se. THE COURT: All right, youre at the wrong table. MR. KIMBERLIN: Okay. THE COURT: Lets get started the right way. MR. OSTRONIC: Lets get started. THE COURT: Counsel? MR. OSTRONIC: Good morning, Your Honor. My name is Patrick Ostronic. I am here on behalf of the defendants, Mr. McCain, Mr. Walker, Mr. Hoge and Mr. Akbar, all of whom are in the courtroom this morning. THE COURT: You represent all the defendants? MR. OSTRONIC: Yes, Your Honor. THE COURT: And there is no potentiality for conflict in this? MR. OSTRONIC: We havent identified it right now, Your Honor, no. Because right now, Your Honor, we have four different cases here, four different defamation suits. Everyone stands on their own. It does not overlap at all. THE COURT: Have they been consolidated? MR. OSTRONIC: No, Your Honor, what happened was, it was a -- THE COURT: So youre telling me that this, that this pm 5
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 shows on the docket Brett Kimberlin v. Aaron Walker, malicious prosecution. Its a jury trial set for three days. And now youre telling me there are four cases? MR. OSTRONIC: Your Honor, there were originally five defendants listed. After several amendments, it went to six. He added two defendants which have not yet been served. However, at a July 1 motions hearing in front of Judge McCann, five of the seven original counts were dismissed on summary judgment. THE COURT: So whats left? MR. OSTRONIC: Defamation and false light. THE COURT: Against? MR. OSTRONIC: Against Mr. Walker, Mr. Hoge, Mr. Akbar and Mr. McCain. THE COURT: Now, so youre telling me that theres no potential of any conflict as between the defendants? MR. OSTRONIC: I dont see it right now. THE COURT: In other words, there wont be any of this -- MR. OSTRONIC: No, Your Honor. THE COURT: -- for the record, pointing at each other? MR. OSTRONIC: No, I dont see it. THE COURT: Anything else preliminarily? MR. OSTRONIC: I believe we have some preliminary pm 6
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 matters to attend to. I know Mr. Kimberlin has already entered one and we have some motions in limine I believe to go through. MR. KIMBERLIN: I have two motions that I filed last week, a motion in limine and a motion to find a statute, a rule unconstitutional. THE COURT: Which rule? MR. KIMBERLIN: It has to do with the rule, and I dont have exactly -- MR. OSTRONIC: Its 9-1, Your Honor, its 9-104. Perjurers cannot come testify. THE COURT: 9-104? MR. OSTRONIC: Im sorry, perjurers cannot testify -- THE COURT: There are a lot of 9-104s. Where? MR. OSTRONIC: Im sorry, CJ, Courts and Judicial Proceedings. THE COURT: Oh, Courts and Judicial proceedings. MR. OSTRONIC: Im sorry, Your Honor. THE COURT: Thats the section that provides that a person who has been convicted of perjury may not testify. MR. OSTRONIC: Yes, Your Honor. THE COURT: Okay. MR. KIMBERLIN: And so I filed a motion to find that unconstitutional. We had a hearing last Thursday before Judge Jordan. He opined that it was an unconstitutional statute, especially in the case where theres a victim. pm 7
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, hold on a second. You may not know this, and this comment isnt intended to be glib, but our Court of Appeals Judges, the highest court in Maryland is not called the Supreme Court of Maryland, although it probably should be, our highest court is called the Maryland Court of Appeals. They wear red robes. My robe is black. Youre asking me to overruled Maryland law. That would be rather presumptive, I think, of a trial Judge to essentially find that a statute that has been duly enacted in the State of Maryland is unconstitutional. Im going to have to have some compelling reason to make that -- MR. KIMBERLIN: I put those in the motion. Im sorry that they didnt get it to you this morning. THE COURT: Well, this case came up late Friday evening. And so thats of no moment. We can still deal with the issues that are involved. MR. KIMBERLIN: Well, first of all, theyre saying that I cant testify in this case because -- THE COURT: No, theyre not saying it. The statute says -- you were convicted of perjury, correct? MR. KIMBERLIN: I think thats their burden of proof. I think if they have a certified copy then they should present it. I dont want to make that admission. MR. OSTRONIC: Your Honor, he already made the admission. He filed the motion to have it overturned. And in pm 8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the motion he filed, he said that he had been convicted of perjury. MR. KIMBERLIN: But its their burden. If they want to say that Ive been convicted of perjury -- THE COURT: Well, but the problem for the Court though, if a person appears before this Court, having been convicted of perjury, then under the statute, this Court cannot allow that person to testify. MR. KIMBERLIN: Precisely. And thats why its unconstitutional, because it conflicts with other rules, many other rules regarding the ability to put on witnesses, the ability to testify, the ability of a -- THE COURT: Well, you can put on witnesses. The statute doesnt prohibit calling witnesses. MR. KIMBERLIN: Well, it prohibits me calling myself. And Im a pro se litigant. You know? THE COURT: It doesnt prohibit you calling other witnesses. MR. KIMBERLIN: I understand that. But what Im saying is that they have the burden of proof to show that I have a perjury conviction, first of all. They need to come to you and say that I have a conviction. Second of all, theres another rule that says that convictions more than 15 years old are inadmissible. THE COURT: Sir, whether you have been convicted of pm 9
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 perjury or not is just a point and click away. MR. KIMBERLIN: Well, I understand that. But still, it has to be proved. It has to be proven. THE COURT: A certified record is just a point and click away. And thats being done right now. MR. KIMBERLIN: Okay. Well -- THE COURT: So youre asking this Court to ignore the allegation that a person is convicted of perjury and to allow the testimony when the statute specifically prohibits it? Its not about them, its what youre asking this Court to do. MR. KIMBERLIN: No, Im asking the Court to say that that statute conflicts with other statutes. And so what statute do you apply? Do you apply the statute that allows me to call witnesses or the rule that says that convictions more than 15 years old cannot be used to impeach? You know -- THE COURT: Well, that rule provides also that if the Court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witnesses or to the objecting party, so thats an issue that the Court would have to reach. MR. KIMBERLIN: Okay, so lets get to that probative value. The perjury conviction occurred when I was a teenager, 40 years ago. 40 years ago. I went before a Grand Jury without an attorney. I was not read my rights at that Grand Jury. I went to court and was found guilty of perjury. The pm 10
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Judge intended to sentence me under the Youth Corrections Act. The Youth Corrections Act is a Federal statute that states that when a person turns 21, the conviction is expunged. Unfortunately, the Judge forgot to make a, quote, no benefit finding as required by the Supreme Court in a later case called Dorzynski. Dorzynski said if a Judge fails to make a no benefit finding at sentencing, that the sentence is wrong. And that case came up in the Supreme Court. Dorzynski came up right after my case was decided, back in 1974. So I went back into court and asked the Judge to apply Dorzynski to my case so that the conviction would be expunged when I reached 21. The Judge said that Dorzynski, because it was a procedural decision by the Supreme Court could not be applied retroactively in the 7th Circuit. In the 9th Circuit and other circuits, the Courts have held that it is applied retroactively. So simply by virtue of the fact that I was sentenced in the 7th Circuit rather than the 9th Circuit and that the Judge made a mistake, an honest mistake at sentencing by failing to make the no benefit finding, 40 years later Mr. Ostronic is coming here and asking you to say that I cant testify. And thats why theres no probative value at all in a perjury conviction that happened as a teenager, when I was not represented by counsel in front of a Federal Grand Jury. Theres no probative value in holding that perjury conviction pm 11
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 over my head because of a mistake by a Federal Judge. That mistake has dogged me for my whole life. THE COURT: During the course of this trial, I know youre representing yourself, and its fine to cite cases off the top of your head, but you need to give the Court the cite for it. MR. KIMBERLIN: Okay. I mean, it was in my motion. THE COURT: I understand that. But youre standing before the Court arguing now. Dont send me on a hunting trip to find things that youre citing. Just give me the cite. MR. KIMBERLIN: Let me see. THE COURT: Youre going to get time to do that. MR. KIMBERLIN: Okay. THE COURT: But you can take your papers out and get ready for trial. We dont want every time an issue comes up, if its before a jury, to have people have to go to their briefcase. MR. KIMBERLIN: And you know, my belief is that that certified, quote, certified record of that conviction, I have my doubts that its online. THE COURT: Counsel? MR. OSTRONIC: Your Honor, I will simply point out that plaintiff did file a motion on Friday to ask that this statute be ruled unconstitutional. In the motion that he filed, he admitted to having been convicted of perjury. So pm 12
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that should be enough right there I would think, Your Honor. Plus, we have numerous cites to some Federal case law. THE COURT: Well, the issue is not whether he was convicted of perjury. The issue is whether or not his argument that the Courts and Judicial Proceedings Article -- MR. OSTRONIC: Is unconstitutional? THE COURT: -- is unconstitutional. Thats the issue. MR. OSTRONIC: Your Honor, I would argue first of all that I do have a, I put together a response myself over the weekend, finishing this morning, which if I can hand it up to Your Honor. Ill hand one to -- it makes several citations, Your Honor, to Maryland case law which outlines that the right to testify is not constitutional but a statutory one. That was in State v. McKenzie. And all the cases that we state, Your Honor, we clearly show that this is in matters involving a criminal defendant. And if the matter of a criminal defendant, the court will find for a criminal defendant in this case that the right to testify is not absolute, that there are parameters you can put on it. Then surely a civil case, which is all dictated by statute and court rules as to who can testify, what can be brought before a civil case. Its surely constitutional. And Ill even point out a little further, Your Honor, that when the constitution, when the Maryland Declaration of Rights and when the Maryland Constitution were pm 13
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all originally passed, at that time, the right to testify for implicit parties was not in existence. And here in Maryland, the right to testify did not become fully entered until 1876. So it didnt all of a sudden become constitutional just because, Your Honor, especially when you come here in a civil case. The State of Maryland in its efforts to have reliable cases have witnesses come forward that are both relevant and reliable and can surely set limits on who can testify. MR. KIMBERLIN: Your Honor, again, there seems to be a slight conflict in the rules. And as he just said, the right to testify is statutory. So, does a rule override a statute? I think that statutory construction always applies -- MR. OSTRONIC: No, no, no -- THE COURT: You both cant talk at the same time. MR. OSTRONIC: Im sorry. MR. KIMBERLIN: -- rather than the rule. THE COURT: Go ahead. MR. KIMBERLIN: But, in this case, you know, to say that a 40 year old teenage perjury conviction forever prohibits me from defending myself, I mean, if I just get beat up or a car ran a red light and hit my car, you know, am I prohibited from testifying that car hit me or that that guy just hit me with a baseball bat because Ive been convicted of perjury? Ive testified in front of you before, Judge. You let me pm 14
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testify. Ive testified in front of Judge Burrell. She let me testify. Ive testified in front of Judge Algeo. He let me testify. THE COURT: Was the statute invoked? MR. KIMBERLIN: Yes. THE COURT: The issue was raised? MR. KIMBERLIN: Judge Alego, when we were in front of him last year -- THE COURT: And what court is that? MR. KIMBERLIN: Right here. THE COURT: Alego? MR. KIMBERLIN: Algeo, maybe. THE COURT: Oh, Algeo, okay. MR. KIMBERLIN: Im sorry, dyslexic today. Judge Algeo. THE COURT: Well, was there a motion made to prohibit you from testifying because youve been convicted of perjury? MR. KIMBERLIN: Yes. They have stated to every single Judge in this case over and over and over that I cant testify. When they raised this last Thursday before Judge Jordan, they came in with a motion for summary judgment on these two counts before Judge Jordan. And Judge Jordan said that he believed that the statute was unconstitutional and if he was the trial judge, he would hold it unconstitutional. But, you know, in my motion -- pm 15
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: He deferred to the trial judge in that case? MR. KIMBERLIN: Of course, he deferred to you. Of course. He said youve got to make that decision. But the point that Ive made in my motion is that its not just, I say find it unconstitutional or in the alternative not applicable in this case. Thats the motion I filed. So Im asking you in your wise judgment to find that a 40 year old teenage perjury conviction that has some constitutional or statutory infirmities and it was only because of the fact that I wasnt represented by counsel at a Grand Jury and that I, that my Federal Judge, Judge Steckler said that, I mean, forgot to say on the record Im doing this under the Youth Corrections Act. Because we all assumed -- THE COURT: And did you find the cite for that case? MR. KIMBERLIN: Its Dorzynski v. U.S., D-O-R-Z-Y-N- S-K-I. THE COURT: Dorzynski? MR. OSTRONIC: Hes talking about the Supreme Court. I think the Judge is asking you about your case. MR. KIMBERLIN: Yes. But the Supreme Court case specifically says that the Judge has to make a no benefit finding if youre under 21 that youre not going to benefit from the Youth Corrections Act. He has to make that finding. And the Judge did not make that finding on the record, he pm 16
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 forgot to. But everybody assumed it. My probation officer at the time told me youre going to have this conviction expunged when youre 21. Everybody knew it. And then what happens? Its not expunged. I go back into court and I say, wait a second, Judge, you forgot to do this. Well, yeah, I forgot to do it. Im so sorry, Mr. Kimberlin, but I cant apply that retroactively because its a procedural decision from the Supreme Court. And I said, well, I filed a writ of coram nobis, Judge, to get that thing thrown out. You know? And it was only because it was considered a collateral attack -- THE COURT: Are you a lawyer? MR. KIMBERLIN: I feel like it, but no, I didnt get my law degree. But I did study a lot. THE COURT: Well, theres another issue, and this issue really has been pretty well argued and briefed. So you said there were two motions in limine? MR. KIMBERLIN: Yes, the other issue is theres a rule that I dont think that anybody is arguing about, and that is that a conviction over 15 years old is not allowed to be used for impeachment purposes. And that rule is Rule 5-609(B) and in that case, Beales v. State, 329 Md. 263, 1993, the Court of Appeals ruled that it was error for the Judge to admit a conviction of more than 15 years old. THE COURT: Again, whats the cite of that case? MR. KIMBERLIN: Its 329 Md. 263, a 1993 case. pm 17
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: 229 or 329? MR. KIMBERLIN: 329. Beales, B-E-A-L-E-S v. State. Error for the Judge to admit a conviction of more than 15 years old. And I think in that case, Im not exactly familiar with the facts, but I think it was a criminal case and there was a witness and the Judge allowed the conviction to come in to impeach the witness. And the defendant appealed I believe and the Court of Appeals reversed. You know, and obviously nobody wants reversible error in this case. And I think that allowing a 40 year old perjury conviction or any other convictions that they might allege, you know, would be improper. THE COURT: The counts that are left -- and Im referring to defense counsel now -- MR. OSTRONIC: Yes, Your Honor. THE COURT: Right. Now, the counts that are left, and Im referring to defense counsel now. What are the ones that are left, the numbers? MR. OSTRONIC: Numbers 3 and 4, Your Honor. THE COURT: And thats of the original complaint? Not an amended -- MR. KIMBERLIN: The second amended complaint. THE COURT: The second amended complaint. MR. OSTRONIC: The counts remain the same through all the complaints. THE COURT: Okay. And they are? pm 18
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KIMBERLIN: Its defamation and false light. THE COURT: Okay, now how are you, how do you intend, as plaintiff to prove up the defamation count without talking about the allegations that the defendants make against you? How do you intend to do that? MR. KIMBERLIN: I am going to talk about the allegations. THE COURT: But my question is how do you intend to do that? MR. KIMBERLIN: How do I intend to? THE COURT: Yes. In other words, you want to keep, you want to keep your past history, thats what this is all about, correct? MR. KIMBERLIN: No, its not about my past history at all. It has nothing to do with my past history. It has to do with defamatory statements that these defendants have made about me, crimes that -- THE COURT: All right, what defamatory statements? MR. KIMBERLIN: Crimes that I have never been charged with, convicted of, or anything. These men on a daily basis, every single day for the last several years -- THE COURT: Well, I mean, youre arguing your case, and youll get a chance to do that. But -- MR. KIMBERLIN: They called me a murderer. Ive never been involved with murder. Ive never done a murder. pm 19
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Theyve called me a terrorist. Im not a terrorist. THE COURT: Okay, let me stop you there. How are you going to, they must plan, theres something that has been said about you, some conduct, all right, that you were allegedly involved in, thats what theyre talking about, correct? MR. KIMBERLIN: No, they seem to have made out of whole cloth, they say that Im a pedophile. Every day they say Im a pedophile. Every day. And they post pictures of Me. THE COURT: But thats not all they say though. MR. KIMBERLIN: Oh, no. THE COURT: How do they, what is it that, about your past conduct, your alleged past conduct that would give rise to the comment about being a terrorist? What conduct would they stand on to show that? MR. KIMBERLIN: Well, I dont know. I dont know. But a terrorist -- THE COURT: Well, you must know what theyre accusing you of or you cant defend it. MR. KIMBERLIN: Oh, no, I can defend it. THE COURT: Okay, what is it that they allege you did that would be terrorist activity? MR. KIMBERLIN: I cant speak for them, but I can assume that what theyre saying is because I was convicted of a crime 35 years ago. pm 20
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: What crime? MR. KIMBERLIN: For detonating an explosive device, that Im a terrorist. THE COURT: Okay. MR. KIMBERLIN: But that is not terrorism. That is not terrorist. Okay? THE COURT: Thats an argument. MR. KIMBERLIN: Thats an argument for the jury. THE COURT: Now, what Im trying to get you to focus in on, how are you going to allege that what theyre saying, i.e., that youre a terrorist, is not accurate unless you talk about what it is that theyre saying? You cant say to the jury, theyre saying something about me and the something that theyre saying is not true. MR. KIMBERLIN: Okay. THE COURT: So in other words, the jury would have to know what it is thats said thats not accurate. So as soon as those words are uttered, thats when the problem begins. You dont agree with that? MR. KIMBERLIN: Well, calling me a terrorist was one of many defamatory statements, not the worst. THE COURT: Okay. MR. KIMBERLIN: Calling me a murderer is pretty bad. Calling me a pedophile every day, Ive never been arrested for pedophilia. I have never been -- pm 21
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Are they saying you were arrested for pedophilia? MR. KIMBERLIN: They say Im a pedophile. THE COURT: But one of the things that will make trials go a lot easier, and this is something you try to get witnesses to understand, when asked a question, either answer the question that was asked or say you dont understand it or something. My question was were you ever arrested for sexual child abuse? MR. KIMBERLIN: Never. THE COURT: You were never arrested for that? MR. KIMBERLIN: Never. THE COURT: Do they say you were arrested for that? MR. KIMBERLIN: They say that I was charged with that. They say that I am that. THE COURT: Is that a yes, that they say you were arrested for pedophilia? If you have charges, theres an arrest. So is that what they said? MR. KIMBERLIN: They say that Im a pedophile. THE COURT: But my question is, do they say that you were arrested or charged with pedophilia? Its not a hard question. MR. KIMBERLIN: Well, you know, it kind of is just because they have created this mean thats so bizarre involving my wife. pm 22
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Were you arrested for a sexual -- MR. KIMBERLIN: Never. I was never arrested. THE COURT: So if they say that you are something that youre not, thats one thing. MR. KIMBERLIN: Right. THE COURT: If they say you were arrested for something, thats clearly something that can be disproved. I mean, whether you were arrested or not. So this isnt splitting hairs, here. MR. KIMBERLIN: No, I know. THE COURT: What are they alleging? Are they alleging that youre a pedophile or are they alleging that you were arrested for pedophilia? MR. KIMBERLIN: Theyre alleging that I am a pedophile. Theyre alleging that Im a murderer, that Im a killer. Theyre alleging that I got them fired from their jobs, that I forced them to flee their homes. These are all false. Theyve done it in a campaign, a multi-year campaign. THE COURT: Okay. All right. MR. KIMBERLIN: And so as far as proving this, I prove it with their own statements. I have literally thousands, thousands of tweets and -- THE COURT: Well, were not going to hear thousands of tweets. This jury will be asleep at the end. MR. KIMBERLIN: Well, I know. I certainly dont pm 23
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 intend to bore the jury with that. But I can show tweets, a tweet is something from Twitter. I can show tweets. I can show blog posts. I can show statements on the radio where they call me a pedophile. THE COURT: Youre saying they. You have to limit any evidence that comes in specifically to -- MR. KIMBERLIN: These four guys. THE COURT: Are you able to show before this jury conduct that was engaged in by each specific person that you have sued? MR. KIMBERLIN: Yes. THE COURT: And youre able to prove that whatever it is they did it, that the individuals that youre claiming are responsible actually did it? MR. KIMBERLIN: Yes. Ive got that, I mean, theyve signed -- THE COURT: And what about damages? MR. KIMBERLIN: Damages? Damages are easy. THE COURT: Tell that to a jury. MR. KIMBERLIN: Yes, well, Im going to. Per se defamation is, according to the Maryland Court of Appeals, is presumed harm. THE COURT: Well, let me see if I understand your sort of theory here. MR. KIMBERLIN: Okay. pm 24
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: You want to prevent the defendants from establishing whatever basis they believe they have for making these statements about you? In other words, if they say that you were a terrorist, whatever they mean by that, you want to prevent them from talking about your conviction for detonating explosives? MR. KIMBERLIN: Judge. THE COURT: Its not a hard question. You want to prevent them from doing that? MR. KIMBERLIN: No. THE COURT: You dont? MR. KIMBERLIN: I dont want that. My conviction for detonating an explosive is not terrorism. Its not a terrorist. THE COURT: Hold on a second. Thats argument. Thats for whoever the alleged fact finder is to determine. My question is, you want to prevent them from getting into that. In other words, youre going to say they say Im a terrorist and Im not a terrorist. You want to stop them from saying we said hes a terrorist because he did this, this and this. Is that what you want to do? MR. KIMBERLIN: Im saying -- THE COURT: I ask easy questions. MR. KIMBERLIN: I know. THE COURT: Is that what you want to do? pm 25
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KIMBERLIN: No, Im saying -- THE COURT: You want to say they say Im a terrorist and -- MR. KIMBERLIN: If I testify, the rule says they cannot impeach me with a conviction of more than 15 years old. Thats what the rule says. And you havent ruled yet whether I can testify. THE COURT: Well, hold on a second. Lets go back to my question. My question is you sue them and you say one of the things that they claim is that youre a terrorist. You want to stop them from putting on the evidence to support why they call you that name, is that right? MR. KIMBERLIN: No, thats not right. THE COURT: So in other words, youre not going to be objecting to them saying this man was detonating explosive devices and we think thats terrorism? MR. KIMBERLIN: Im not going to object to that. THE COURT: I mean, terrorism is not a specific, well, it might be a Federal charge, but theres no charge. Terrorism is I suppose an adjective describing certain kinds of conduct. MR. KIMBERLIN: Right. THE COURT: So would it not be a factual question of whether an individual who was detonating explosive devices, whether thats terrorism or not, is something to be argued? pm 26
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KIMBERLIN: Thats something that should be argued, and I think the jury should have that. THE COURT: Okay. MR. KIMBERLIN: And Im agreeable to that. But, you know, theyre arguing for a rule over here about perjury. Theres another rule that says you cant do this if its more than 15 years old. And I may not even testify. I may not. As the trial proceeds -- THE COURT: Who do you intend to call as witnesses? MR. KIMBERLIN: Well, I intend to call my daughter. THE COURT: To testify to what? You dont have to give the details of her testimony, obviously. I dont want you to reveal necessarily your litigation strategy. MR. KIMBERLIN: They know it. THE COURT: But is she going to give factual testimony -- MR. KIMBERLIN: Oh, yes. THE COURT: -- related too, youre going to show this jury that these certain things were said about you? MR. KIMBERLIN: Right. THE COURT: And then you know what the defenses to defamation are, do you not? MR. KIMBERLIN: Yes, I do. THE COURT: What are they? MR. KIMBERLIN: Well, Id love to hear what you have pm 27
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to say. THE COURT: Truth is the defense. MR. KIMBERLIN: Truth, yes, right. THE COURT: So in other words, if youre called a terrorist and you say youre not, and they put on evidence, well, he says hes not a terrorist, but he was going around blowing up chicken coops or whatever, I dont know. And then wouldnt that be a factual question for the fact finder? MR. KIMBERLIN: It would. It would be. Right. And my daughter is certainly not going to testify, my 15 year old daughter is certainly not going to testify about something that happened 40 years ago. THE COURT: She wasnt even born then. She wasnt even born. So what is she a witness to? MR. KIMBERLIN: But shes going to testify about pedophilia. THE COURT: How is she going to testify about that? Is the allegation that she was the victim of it? MR. KIMBERLIN: Thats what theyve said. Yes. THE COURT: And you want a 15 year old girl to be embroiled in this? MR. KIMBERLIN: Judge, my daughter is 15 years old. She has been bullied out of two schools, two high schools, bullied by these guys. MR. OSTRONIC: Your Honor -- pm 28
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KIMBERLIN: She has had to move twice schools -- THE COURT: Hold on a second, again, youre not arguing the case, were just talking about these motions. MR. KIMBERLIN: -- because of these false allegations of pedophilia. They have tried to destroy her musical career. Shes a child prodigy. Im just letting you know. Shes very, very capable. THE COURT: Lets just limit this to whats necessary for purposes of these motions. So thats as to your second motion in limine, that the conviction, over 15 years ago. Now, but those things are the very basis of how all this started, is it not? MR. KIMBERLIN: No, its not. THE COURT: Okay. MR. KIMBERLIN: You know. THE COURT: Okay. Well, let me hear from the defense. You dont need to say any more about the perjury issue. Ill rule on that. MR. KIMBERLIN: Great. THE COURT: Yes, sir? MR. OSTRONIC: Your Honor you have -- THE COURT: The second question, deal with that. MR. OSTRONIC: The 609 question? The impeachment? Your Honor, the rule is you cant use convictions over 15 years to impeach a witness. Thats all it says. Thats what pm 29
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 impeachment is all about. Its not about bringing facts to light about the plaintiff or facts to light about the defendant. Its strictly on impeachment purposes. And if Mr. Kimberlin does not testify, then none of these facts would be an impeachment of the witness. And wed certainly have no problem, I mean, 609 is the rule. Anybody he might call up here, if there was a conviction over 15 years, youre right, Im not going to use that to impeach that witness. Thats all 609 calls for. THE COURT: What the Court is struggling with here is this. Its a hypothetical. Sit down, sit down. You claim that say these individuals allege that you are a pedophile. Okay? And you call a defendant, you can call a party as you know. And what do you ask him? What basis do you have for alleging that Im a pedophile? MR. KIMBERLIN: Yes. THE COURT: Youve now, that jury has heard that allegation. And they have to give some answer to that question, correct? MR. KIMBERLIN: Right. THE COURT: But its almost as though what youre trying to keep from the jury needs to be heard for purposes of deciding the case. Because you cant come in and just say theyre saying bad things about me that are not true. Well, what things? I mean, if the jury doesnt know what it is pm 30
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 thats alleged, then how can they decide this case? MR. KIMBERLIN: Your Honor, I want the jury to have a complete picture of this whole case. Im not trying to hide anything from the jury. THE COURT: And the only way they dont know about you, the past with respect to explosives is if for some reason that evidence is precluded, which is not likely given the fact that thats what youre claiming. So you cant say theyre claiming this, theyre defaming me and then prevent them from saying, well, he did do that. MR. KIMBERLIN: Well, okay. THE COURT: Do you understand? MR. KIMBERLIN: But I didnt murder anybody and I didnt commit any pedophilia. THE COURT: Well, Im not talking about murder. Im just talking about the explosives. MR. KIMBERLIN: Well, as I present my case, maybe I wont even talk about the terrorism. Maybe Ill leave that alone -- THE COURT: Well, thats up to you. MR. KIMBERLIN: -- based on your esteemed judgment. But -- MR. OSTRONIC: Your Honor, if I can just throw in one thing here? THE COURT: Sure. pm 31
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. OSTRONIC: On the question of pedophilia, if that matter is introduced, Your Honor, you and him were dancing around the question of being arrested or -- THE COURT: Well, hes dancing around it. MR. OSTRONIC: Thats what Im saying, he was dancing. I knew you were trying to get the answer. And you actually hit right on the head, Your Honor, was he ever charged. And is that what the basis is of some of the claims. And there was in fact charges issued by the State of Maryland against Mr. Kimberlin for third degree sexual assault last July. Thats there, the records were sealed back in October and November, et cetera, but those charges were out in the open there for a while. Any claims about pedophilia began after that moment, after those things came out, Your Honor. And those charges were filed by his wife against him. And the State of Maryland accepted and put the charge at the front there. So to the extent -- THE COURT: How do you intend to get that into evidence though? MR. OSTRONIC: Well, I dont want to bring it into evidence, Your Honor. But if he brings up and says, if he asks any of my clients about charging him with pedophilia, its out there, Your Honor. THE COURT: There it is. MR. OSTRONIC: There it is. And hes brought it in pm 32
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there. And what I dont want to happen here, Your Honor, is to relive this. If hes going to bring his daughter in here, and Ill have some motions later on about what witnesses he can and cannot, he should or should not call, I would certainly not want her to hear all that again. THE COURT: Yes, I wouldnt want a 15 year old to have to be subjected to that. MR. KIMBERLIN: Your Honor, thats what this case boils down to. My wife has some mental issues. Ive been dealing with that all my life. THE COURT: Well, not all your life, just since youve been married. MR. KIMBERLIN: Well, 15 years. And last year these guys harassed us so much, came to our house, sent proxies to our house, took pictures of daughters, filed multiple, multiple criminal charges against me, peace orders against me. One that was in front of you. And it drove my wife crazy. She had a nervous breakdown. So what did I do? I did what any loving husband would do. I sought to get her help, to get her an evaluation. She had been institutionalized before. This is what I did. Thats what loving husbands do. These guys came to the court, came to the hearing, they saw it on the case site, because they had been stalking me. They watched everything I do -- MR. OSTRONIC: Your Honor, now hes testifying. pm 33
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KIMBERLIN: Okay. No, Im trying to lay the groundwork here. So these guys come to the court. Judge, I think her name is Mitchell, pulled my wife, put her in handcuffs, pulled her in the back and said, you know, what youre doing is inappropriate -- MR. OSTRONIC: Now hes talking out of court. THE COURT: You cant do that. MR. KIMBERLIN: But she said I either lock you up for an evaluation, or you get help. MR. OSTRONIC: Again, Your Honor, theres nothing on the record -- MR. KIMBERLIN: Im just trying to give you -- THE COURT: Thats not really -- MR. KIMBERLIN: So what they do, she comes out of the courtroom, they contact her shortly thereafter. And what do they do? They say we know how you can keep from going back for a mental evaluation. THE COURT: You wont be able to testify to any of that. Even if you didnt have this perjury issue, you wouldnt be able to testify to that. MR. KIMBERLIN: No, theyll testify to it. Ill get them to testify to it. THE COURT: Good luck with that. MR. KIMBERLIN: But anyway, the point is that they created this false mean. They created this false narrative. pm 34
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And my wife, you know -- THE COURT: All right, youre going beyond what I need to know for purposes of the ruling. Now, the remaining counts are defamation, correct? MR. KIMBERLIN: And false light. MR. OSTRONIC: And false light. MR. KIMBERLIN: Yes. Counts 3 and 4, I believe. MR. OSTRONIC: Counts 3 and 4, yes. THE COURT: Now, what the parties need to -- well, let me rule on these issues. Now I think probably out of an abundance of caution we should do jury selection, because its Monday. Its still Monday, right? MR. OSTRONIC: Yes, Your Honor. MR. KIMBERLIN: Weve got a two day trial. THE COURT: Pardon me? MR. KIMBERLIN: Theres a two day trial. THE COURT: And also, were not the only case going on. And so if we dont get the jurors, then theyll go elsewhere and it could be longer than that. Are there other motions? MR. OSTRONIC: Yes, Your Honor, Id like to introduce something. THE COURT: You can have a seat, sir. Okay, this is a defense motion, correct? MR. OSTRONIC: Yes, Your Honor. And I just finished pm 35
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it this morning, Your Honor. I have not been able yet to put it -- THE COURT: All right, just tell me what it is. MR. OSTRONIC: All right, Your Honor. If you look back, Judge McCann made an order on July 8 dismissing five of the seven counts and imposing sanctions on plaintiff for failure to provide discovery and putting other limitations on evidence that he may be able to present to you at the trial. Judge McCann at that time gave plaintiff until noon July 10th to answer fully all the interrogatories presented, which totaled 90 questions and to answer the document requests. In his order, he stated that any piece of evidence directly on point with interrogatories that is not covered in the interrogatory answer by plaintiff or in the document request will be precluded from being introduced at the trial. And thats part of his order at 183 and 194, docket numbers 183 and 194, Judge McCanns order. Towards that, Your Honor -- THE COURT: Well, we can shortcut that. If the Court ordered that interrogatories be answered and there were specific questions asked that were not answered, then clearly any information that was sought and not turned over to the defense after the Courts order will not be admitted. MR. OSTRONIC: Okay, Your Honor. THE COURT: But I cant rule on that until the issue pm 36
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 comes up. If theres something that comes up that should have been turned over or should have been answered and it wasnt answered, then it will not be admitted. MR. OSTRONIC: You want to wait specifically until its tried in the case itself or, because I think we can -- THE COURT: Yes. Why, you think its that simple? MR. OSTRONIC: I do think its that simple. THE COURT: What is it? MR. OSTRONIC: Your Honor, he did not answer interrogatory number one which asked the plaintiff to name all individuals that may have discoverable information that tends to support a position that you have taken or intend to take in this action including any claim for damages and state the subject matter of the information possessed by that person. He named nobody, which means that any witness that he might call would presumably have some information that supports one of his positions. Since he did not name that person or what information they had, he should be precluded from calling any witnesses to this case. THE COURT: Including parties? MR. OSTRONIC: Well, no, parties he can call. He can call the parties, yes, Your Honor. But any other witness outside the parties he should not be able to call. Further, Your Honor, standard general interrogatory number four asked plaintiff to itemize and show how you calculate any economic pm 37
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 damages claimed by you in this action and describe any non- economic damages claimed. Plaintiff has claimed in his complaint, he did ask for -- THE COURT: Whats the number of that? MR. OSTRONIC: Thats standard general interrogatory number four. Your Honor, do you want to have a copy of this? THE COURT: No, go ahead. MR. OSTRONIC: Okay. His response to that was simply to say that damages would be based on a normal hourly rate that an attorney versed in internet defamation would charge, and that was it. Thats all he said about damages. In other words, he claimed no economic damages and itemized not a single dollar of damages. Further, Your Honor, in Judge McCanns order, Judge McCann said that unless plaintiff answers the questions about expert witnesses, hell be precluded from calling any expert witnesses. THE COURT: Whats the number of that? Was that a specific interrogatory? MR. OSTRONIC: Thats number three. The expert witnesses would be, number two is the expert witnesses, Your Honor. Further, we had a separate -- THE COURT: Is there going to be an expert in this case? MR. OSTRONIC: No, Your Honor. But what you just pm 38
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 heard from his answer to the general interrogatory about damages calling a lawyer to talk about that, that would be -- THE COURT: That would not be a standard by which a pro se claim could allege damages if he didnt in fact have a lawyer and paid attorneys fees. Thats a no-brainer. MR. OSTRONIC: So then he has no damages claimed, Your Honor. No non-economic damages claims, no witnesses out there to be claimed, and if he cant testify, Your Honor, wed be wasting the jurys time. Because further, Your Honor, one other aspect we talked about, defamation -- THE COURT: Well, he could call the parties though. MR. OSTRONIC: He could call the parties, Your Honor. But defamation requires proving falsity. He has to prove the falsity. We do not introduce truth of defense. Thats a standard here in Maryland. There is no way the parties can prove falsity, no way the parties could prove harm. They have no information to that regard. It would just be a complete waste of time, Your Honor, for all of us to go through this. Thats where hes limited to. THE COURT: What is this motion captioned? MR. OSTRONIC: The motion I was going to introduce would be a motion in limine to -- THE COURT: Motion to do what? MR. OSTRONIC: To conform plaintiffs use of evidence to an earlier court order. I just finished it this morning, pm 39
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor. THE COURT: Are there any other motions? MR. KIMBERLIN: Can I respond to that? THE COURT: You will be able to respond to everything thats said. I want him to finish the motions. MR. OSTRONIC: Then I have some specific interrogatory answers in here, Your Honor, but from what youve told me earlier, we can, those can be brought up during the case itself. THE COURT: What about any other motions? MR. OSTRONIC: Those are my only motions, Your Honor. Well, excuse me, Your Honor. The one other thing we would suggest is you can see plaintiff has a pile of papers there. None of these has been authenticated. He did not request any authentication, et cetera. We would request before we brought the jury in that anything that he wanted to be introduced would be authenticated or otherwise identified. And we would want to make sure that any documents he wishes to introduce were presented to us in discovery. And we would compare it against our discovery. Further, because of the time parameters on the torts involved here, namely the defamation is a one year statute of limitations, we did not introduce documents that went back to 2012, January of 2012 or what have you, nor do we want to see entries that were outside of the complaint. Plaintiff has so far yet to identify a single document that pm 40
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 contains particular defamation that he says how it harmed him or what have you, Your Honor. We would want then therefore to say any document he introduces has to at least be relevant to the specific claims he makes in his complaint. He cant introduce new material that we didnt know he was claiming in his defamation. THE COURT: Well, clearly any information that was requested in discovery and not turned over in discovery will not be used at trial. Thats just a standard rule. MR. OSTRONIC: Yes, Your Honor. THE COURT: Thats not unique to this case. All right, sir, do you want to respond to the two issues of counsel? One, that you didnt answer interrogatories -- MR. KIMBERLIN: Okay. First of all -- THE COURT: And two, that you didnt explain what non-economic damages you sustained. MR. KIMBERLIN: Right. Ive got a couple of issues. First of all, the defendants and myself filed a pre-trial statement on June 6. It was signed by all parties, including Mr. Ostronic and all the defendants and myself. Its required by I think it was Judge Rubin. And number eight lists name, telephone, address of each person who may be called to testify. I provided that. They have notice of that. The whole issue in a trial is notice and due process. You know, they know who I may call to testify. You know, when the defendants all signed pm 41
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it right here, and it goes before a Judge as a joint filing, they have notice. Obviously, the interrogatories were something that happened subsequent to that. And as a pro se litigant, I didnt think that I had to list again witnesses that Ive already listed and that they signed off on. It doesnt make any sense to do that. Secondly, on July 10th as ordered by Judge McCann, I turned over probably 3,000 pages of documents. Three thousand pages. Now, you know how many pages theyve turned over to me? One. One single e-mail. When I filed a motion to compel their compliance with discovery, they objected and it was denied. Ive gotten nothing, zero, except for one small, tiny e-mail. So what theyre trying to do -- and this case has been like this from the get-go. You know? Weve had hearing after hearing before a dozen judges or half a dozen judges, anyway. And its all been technicalities. Lets knock him out on this technicality, knock him out on this technicality. And here it is again. I want a jury trial on the merits. I deserve that. Im a pro se litigant. You know? Hes trying to say that I have to comply with every tiny little thing. You know? This is a case. Its a big case. Theres a lot of stuff here. You know? The Supreme Court, the Maryland appellate courts have all said you know, you cant hold a pro se litigant to these stringent things that -- THE COURT: Well, youre going to need a case to cite pm 42
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that says that. MR. KIMBERLIN: Out of the Supreme Court? THE COURT: Any court except maybe the 9th Circuit. Youre going to need a case that says that. You just cant stand up in court and, no one can do that, stand up in court and just make these bold declarations. You can do that in almost every other institution in America, but not in court. If you say something, you need to back it up. MR. KIMBERLIN: Okay. Well, obviously Haines v. Kerner -- THE COURT: Haines versus who? MR. KIMBERLIN: Kerner. H-A-I-N-E-S v. Kerner. I believe its a Supreme Court case. And I believe it talks about pro se litigants. THE COURT: Kerner? How do you spell Kerner? MR. KIMBERLIN: Thats something thats so -- THE COURT: Kerner with a K or with a C? MR. KIMBERLIN: K-E-R-N-E-R. I believe so. THE COURT: Okay. Anything else regarding discovery? Because we dont have two sets of rules, one rule book for pro se litigants and one rule book for lawyers. That would be an absolute disaster. Theres no requirement that a person have a lawyer. Speaking of the constitution, one has the right to represent oneself if one chooses to do so. But youre not going to get any special dispensation just because you choose pm 43
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to represent yourself. Now, people choose to represent themselves for a lot of reasons. And so were not going to get into that. Probably the most common reason is the cost of hiring counsel to represent them in cases. But it would be fundamentally unfair if people could come in off the street and represent themselves in cases where the other side is represented by counsel and the Court would set aside the rules for the person that is representing him or herself and then hold the side with the lawyer to the rules. That would be fundamentally unfair. MR. KIMBERLIN: Your Honor, Im not asking for any special treatment, but Im saying if I let them know in a pre- trial statement ordered by Judge Rubin to give them the witnesses and we all sign it as a joint statement, then thats the witnesses. You know? Why should I have to come back in an interrogatory and repeat that what they already know? I didnt just decide that Im not going to have these witnesses. I just submitted this in June. You know? And a couple of weeks later, theyre saying, oh, you didnt say the same thing you said in the pre-trial statement. THE COURT: Well, the interrogatories is a little more detailed than that. Theres a purpose for these rules that has been time tested. Thats the reason for interrogatories in depositions. And it has to do with preparing for trial. A pre-trial statement is something pm 44
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 entirely different. A pre-trial statement is required to be filed for the Court, not for the other side. MR. KIMBERLIN: All right. Well, in those same interrogatories, they asked what documents you will use and I gave them 3,000 pages of documents. Three thousand pages, roughly. And I referred to this in the interrogatories. So as a pro se litigant, I felt like I was giving them notice, when they gave me no notice. I have not one single document from them as to what theyre going to put on, not a single document except one e-mail. So I give them 3,000 pages of documents and they come in to you and argue that I shouldnt be allowed to put on a case because I have no evidence because I didnt state it in that particular interrogatory. I stated it in another interrogatory. I stated it in another interrogatory. I said heres what Ive got, right here, 3,000 pages. Thats in another interrogatory. Because I didnt state it in the first interrogatory but I stated it in the third interrogatory? Im basing this case on their statements, their blog posts, their tweets, their radio programs. Thats what this case is based on. They have all that. Its right here. THE COURT: And you understand that when you sue somebody you have to be very specific with what youre alleging each particular individual did, not they, and you have to be able to prove that in a manner that is consistent with the pm 45
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rules of evidence. Im not going to set aside the rules of evidence because a person is a pro-se litigant. MR. KIMBERLIN: Im not asking you to. THE COURT: If its not admissible with a lawyer, its not admissible pro se. MR. KIMBERLIN: Right. And if a party gets on the stand and I pull out a blog post and I say did you publish this blog post on your blog, then Ive shown that its, Ive given a foundation for that. I mean, thats what Im going to do. Thats this case, basically. MR. OSTRONIC: Your Honor, first of all about the pro se stuff, Your Honor, Mr. Kimberlin is a much more experienced litigator than I will ever be. Youve been appearing before courts here in and the Federal level. He has way more experience than Ill ever hope to have is all I can say in that regard, Your Honor. The interrogatory that you, as you pointed out there -- THE COURT: Well, just because you appear in court a lot of times doesnt mean that. Some people have ten years experience and some people have the same experience ten times. I mean -- MR. OSTRONIC: Fair enough, Your Honor. Fair enough. But I will say the list of witnesses that was on the, obviously in the pre-trial, all it was -- THE COURT: Well, youre required to answer in pm 46
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 writing. MR. OSTRONIC: Right. THE COURT: Thats just a rule. I didnt just make that up. Thats a rule. You as a lawyer are required to do it. Plaintiffs and defendants that are non-lawyers are required to do it. The rules dont discriminate. They apply the same to everyone. But, you know, I dont like trials in limine because some of these issues look different when they come up in trial than they do when theyre being argued in a motion in limine. MR. OSTRONIC: I appreciate that -- THE COURT: Its very difficult to do that. For a long time, Maryland didnt even entertain motions in limine. But we do now. Our rules of evidence pretty much parallel the Federal rules in most cases. Is there anything else preliminary? MR. KIMBERLIN: Just that I want to mention a couple of things. He tried to finesse this one year statute of limitations on defamation. Theres a three year statute of limitations on false light in the State of Maryland. So for him to try to limit me to one year for the defamation and three years for the false light doesnt make much sense. And secondly, as far as damages, as the 4th Circuit said and the Maryland Appeal Courts have said -- THE COURT: Youre doing pretty good with all these pm 47
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 circuits, 4th, 7th, 9th, 5 th . MR. KIMBERLIN: Well, I try to do my job, Your Honor. THE COURT: Well, this a circuit court. Go ahead. MR. KIMBERLIN: If a statement constitutes defamation per se, however, harm to reputation is presumed, damages may be awarded on the basis of that presumption when the plaintiff has demonstrated malice by the speaker. So theyre saying that I have to come in and show that Ive spent $6,000 on my daughters therapy, you know, therefore thats compensatory damages or something. But the Court of Appeals and the 4th Circuit state where theres defamation per se, where somebody says that you committed a crime that you did not commit, that its defamation per se. And the damages are presumed and the jury can make the determination of damages without a listing of yes, $6,000 for this guy, I dont have to do that. Its damages per se. Im not saying some tiny little peccadillo that these guys said about me. Im saying they accused me falsely of crimes, that this has harmed me. It has harmed my reputation. It has harmed my family. Thats what this jury is going to decide. MR. OSTRONIC: You still have to prove falsity. And thats where hes going to have a problem, Your Honor. MR. KIMBERLIN: I will prove falsity. I will prove falsity. And of course, as you mentioned, truth is the defense that they have to come up with. pm 48
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. OSTRONIC: No, truth is not a defense. MR. KIMBERLIN: Well, truth is a defense to defamation. And they cannot prove anything about pedophilia, nothing. Zero. MR. OSTRONIC: I hope plaintiff doesnt think that we have to mount a defense to the truth. Plaintiff has to prove the falsity of the case and he will have a problem with that element. THE COURT: The opposite of falsity is truth, and you have to, when you allege someone has made a false statement, you have to show that it was false and if the statement is false, then thats the end. MR. KIMBERLIN: Right. THE COURT: If you can prove that. MR. KIMBERLIN: Well, I intend to. I intend to prove it. THE COURT: But the jury has to also know what it is that youre disproving, in other words, what these allegations are. MR. KIMBERLIN: And probably because of your sage advice, I may not get into the terrorist issue. THE COURT: Well, just for the record, that was the courts rulings and not advice. I dont want to sound like Im giving legal advice. All right. Anything else? MR. KIMBERLIN: No. pm 49
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. OSTRONIC: No, Your Honor. You understand now what well be bringing up during the trial as to limitations, et cetera, so. THE COURT: Sure. And I want to make it very clear and for plaintiff to understand in this case sometimes people who represent themselves go away with the notion that somehow they were treated unfairly. If adhering to the rules of procedure and the rule of law is unfair, then so be it. But this Court makes every attempt to make sure that both sides are treated fairly. And that would include if theres counsel on the other side whos done the job as counsel apparently has in this case, the rules apply to them as well. And so you need to understand that. Otherwise, the court system completely breaks down. If every day somebody comes into court and says look, Im not represented and maybe this evidence shouldnt be admissible, but Im not a lawyer, so this hearsay evidence should come in. Oh, no, no, no. It doesnt work like that. That would be a total disaster, not to mention how fundamentally unfair it would be. And we do have some sad cases where people represent themselves and perhaps might even have a substantial claim, but they cant prove it. So, you dont decide cases based on sympathy or based on the fact that the other side might have professional representation as is the case here. Just like, I mean, no, Im going to stay away from football analogies. Ill pm 50
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just stop there. But we play by the rules here. In the district court, I know youve been in district courts. In the district court, the court does and can relax the rules. Why? Because in district court, people file $17 lawsuits. And you couldnt even get two minutes of a lawyers time for a $17 lawsuit. And so the district court doesnt expect citizens with small claims, my neighbor cut a limb off my tree or something, to go out and hire a lawyer at a cost of several hundred or maybe a thousand dollars more than the actual damages in the case. So in the district court, the rules are relaxed. But in this court, theres no provision for us doing that and we dont relax the rules. Now, I know sometimes judges might stretch a little and give a pro se litigant some consideration that the rules dont provide for. But in a serious case like this where the outcome of the case is extremely impactful on both sides, dont expect that the rules will not be applied. They will be adhered to. Now, anything else? MR. OSTRONIC: No, Your Honor. Thank you. THE COURT: Now what about voir dire? MR. OSTRONIC: Voir dire? We introduced the questions as part of our pre-trial. THE COURT: Well locate that. And did you submit voir dire or -- MR. KIMBERLIN: It was a joint statement. pm 51
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. OSTRONIC: It was a joint statement. THE COURT: Okay, thats fine. All right, well take a break. Well pick the jury. And if theres anything preliminary after that, its easier to get the jury picked. Thats done. And then other things we can deal with. Ill deal with the issue of your opening statements later. Yes, sir? MR. KIMBERLIN: I have two questions. I filed some subpoenas for some witnesses. One of them called on Friday and said that they were filing a motion to quash and asked me to agree. I did not agree. I told them that if they want to try to quash the subpoena, theyve got to come in. So I havent seen them or heard from them since. I havent checked my e- mail. THE COURT: Well, well deal with that. If the witness is under subpoena and the witness is not here, well deal with that issue. MR. KIMBERLIN: Okay. All right. Thank you. THE COURT: All right. Well take a recess and well get the jury in. THE BAILIFF: All rise. THE CLERK: The Court stands in recess. MR. OSTRONIC: Your Honor? THE COURT: Yes, sir? MR. OSTRONIC: Are you going to make the rulings pm 52
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 after you come back? THE COURT: Yes. (Recess) (The prospective jurors entered the courtroom.) THE COURT: Ladies and gentlemen, follow the bailiffs instructions. Follow the bailiffs instructions. (Bench conference follows:) THE COURT: I want to make sure that we dont run into problems. Now, the allegation of the case, okay. So the parties are Brett Kimberlin and the defendants Robert Stacy McCain, William John Hoge, III, Aaron Walker and Ali Akbar. Now, what do you think the allegation of the case should be? In other words, what is it that this case is about? So the plaintiff claims that defendants -- MR. KIMBERLIN: Defamed him and portrayed him in a false light. THE COURT: How? Where? MR. KIMBERLIN: In the State of Maryland, on the internet, online. THE COURT: Portrayed him in a false light and defamed his character? MR. KIMBERLIN: The defendants on the internet engaged in defamation and portrayed me in a false light. THE COURT: Okay. MR. KIMBERLIN: I mean, thats the gist of the case. pm 53
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Do you agree with that? MR. OSTRONIC: Well, thats what hes alleging, defamation and false light. THE COURT: Thats whats in here. MR. OSTRONIC: Defamation and false light, yes. (Bench conference concluded.) THE COURT: Good morning ladies and gentlemen of the prospective jury panel. Im Judge Eric Johnson of the Circuit Court for Montgomery County, which court you are in. We are about to begin a civil jury trial. But before we go any further, is there any member of this panel for whom English is a second language? Anybody have English as a second language? All right, would those of you on the right side of the courtroom, on this side, please stand? What is your number, maam? JUROR NO. 22: 22. THE COURT: And whats your primary language? JUROR NO. 22: Polish. THE COURT: And English is not a problem for you, correct? JUROR NO. 22: No, sir. THE COURT: All right, thank you. Have a seat, please. Yes, maam, whats your number, please? JUROR NO. 45: 45. THE COURT: And your primary language? pm 122
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 front of jurors. Why? Because people dont know what kind of jury youre on. And they shouldnt be saying things that could potentially influence you. So thats the reason you have to keep those badges prominent. So if you get in the elevator and all of a sudden it gets quiet in the elevator, its not your cologne. Is that they see that badge, and oops, theres a juror and they stop talking about whatever it is theyre talking about, because they dont want to say anything that could potentially influence a juror. So thats the reason that you use those badges. And they will be collected at the end of the day and returned to you the next day. With that, please take a few minutes to break. I dont know that well get much more beyond just opening statements today and youll be released and then tomorrow well hear the meat of the case, so to speak. So please dont leave the floor, because your break isnt going to be that long. Okay? Juror No. 2A, you are the foreman of this jury. So congratulations. All right, thank you. You can step out into the hallway. Leave your pads on your seats. (The jury left the courtroom.) THE COURT: Counsel, could you approach? (Bench conference follows:) THE COURT: The reason were going to stop at about probably 3:15, this case came to me Friday late. And it was pm 123
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not assigned to me as you probably know. And unfortunately, I have a dental appointment. MR. KIMBERLIN: Dental? THE COURT: A dental appointment. And theyre pretty hard to get. And so I dont want to cancel it. I hope he doesnt put the pliers on me -- MR. KIMBERLIN: I hope youre here tomorrow. THE COURT: So were going to stop then. But I think youll get this case in. MR. OSTRONIC: I think so too, Your Honor. I would say that if its all the same, I dont see my opening statement being more than a couple of minutes. I would just as soon get it done all at the same time. THE COURT: Now, with opening statement, we need to be careful in terms of whats said and not said. And Im not going to go beyond that. Ill just -- I dont want to create issues that dont exist. MR. KIMBERLIN: Do we have a time limit? THE COURT: Well, your time limit should be logical. I mean, theres a reason -- MR. KIMBERLIN: I mean, obviously youve got to leave, but -- THE COURT: No, but theres a reason why Madison Avenue has a commercial on T.V. every 12 minutes. You talk to people much longer than that and youve lost them. All an pm 124
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opening statement is what this case is about. Its not -- remember, its not evidence. So they cant consider it as evidence. MR. KIMBERLIN: I understand. THE COURT: Its just -- I always call it like a preview to the movie about to come -- like a trailer. This is what this case is about. Thats all. Thats all it is. MR. OSTRONIC: I agree, Your Honor. THE COURT: And closing is -- kind of using old military parlance, you know, in opening you tell them what youre going to tell them, what it is youre going to tell them, and then at the trial you tell them and then at the end you tell them what you told them. You know? Okay. MR. OSTRONIC: Your Honor, I was going to say though that -- THE COURT: And you all can take a five minute break too, if you want to. MR. OSTRONIC: No, its not that, Your Honor. I was just going to say that if opening statement is only going to take a few minutes, I would just as soon do that -- THE COURT: Oh, you want to -- MR. OSTRONIC: Id just as soon do it tomorrow morning and go right from opening statements into the case itself instead of breaking it up for no apparent reason. Otherwise, were just talking to them and then we just kind of pm 125
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 leave. THE COURT: Heres the problem. The length of this trial -- we will finish tomorrow, but thats 45 minutes from now. You think if we give opening statement -- MR. OSTRONIC: Its not a question of getting it in. Its just so that -- THE COURT: You rather for the continuity purposes? MR. OSTRONIC: Thats the only reason Im saying that. MR. KIMBERLIN: You know, these people are smart. I think theyd remember what happened from day to day. MR. OSTRONIC: Okay. To me, its just more a stylistic -- but Ill go with your way. THE COURT: I think well go ahead. MR. OSTRONIC: Are we going to do the rulings now? THE COURT: The rulings? Oh, yes, yes. Lets see -- I dont know. Im going to step down for a minute. Im going to step back in about five minutes and Ill make those rulings with respect to the issues that are before us and then well open and then send them home. And in fairness to them, you know, theyve been sitting here all day. Its kind of nice if they know something about what the case is. MR. KIMBERLIN: Right. THE COURT: I say this for the record, I know youre not a lawyer, but doors can be opened in opening statement that pm 126
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can cause things to be admissible that may not otherwise be admissible if that door wasnt opened, if you read what Im telling you. MR. KIMBERLIN: Of course. THE COURT: And I know counsel youre well aware of that. MR. OSTRONIC: Im well aware. THE COURT: But you need to be careful. MR. KIMBERLIN: I appreciate that. THE COURT: You need to be careful about that. Okay, well take a brief recess. (Bench conference concluded.) (Recess) THE COURT: There were two motions in limine regarding how the trial will proceed. The first one -- Ill just deal with the second one first, and that was the motion that would essentially prohibit the admissibility of a conviction that was more than 15 years old. Now, I want to be clear. That conviction, is that the perjury conviction or another conviction? MR. KIMBERLIN: I mean, it could be either one. THE COURT: Well, actually, its very important because youre bringing a claim alleging that certain information based upon certain events in your past with respect to the record is defamatory, and you dont get to have it both pm 127
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ways. You cant on one hand say theyre defaming me and theyre doing it by bringing up something thats 15 years old. You dont really get to have it that way. And so are you suggesting that the perjury conviction should not be talked about or something else? MR. KIMBERLIN: No. I think that if I testify, that they shouldnt be used for impeachment purposes unless I open that door. Thats what Im asking. THE COURT: With respect to the 15-year-old conviction? The one thats over 15 years? MR. KIMBERLIN: Yes, its 40 years. Its 35, 40 years. THE COURT: And thats the conviction for perjury when you were a juvenile? MR. KIMBERLIN: Right. And the other conviction for the explosive devices was 1980. THE COURT: Well, the problem is that is one of the very main grievances that you have. MR. KIMBERLIN: Right. THE COURT: And so what youre saying is that something happened. It was a long time ago. Theyre writing about it. And its causing me harm. Now in all of the cases that were recited with respect to conviction by the way are not civil cases. They are criminal cases. And theres some very good reasons why that rule exists with respect to criminal law. pm 128
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I dont know, I havent found any case that would prohibit the admission of evidence that a person was convicted of crimes in the past, more than 15 years ago, where that evidence was kept out in a civil case. Now, theres still time, if you can come up with some explanation or some case, I will certainly hear it. But at this point, I will deny that motion in limine and just leave it at that. So Ill deny that motion. With respect to your motion to deny the defense motion to prohibit your testimony regarding a perjury conviction, I will deny that defense motion. The Courts and Judicial Proceedings Article says a person convicted of perjury may not testify. Now, every place else in the statute, when they want to prohibit -- when the statute seeks to prohibit certain conduct or to order certain conduct, the word shall is used. In other words, if there wasnt any discretion available to the Court, the statute would read shall not testify. And it doesnt. It says may. Not only that, all of the cases seem to deal with the issue of whether or not an individual was actually convicted of perjury or whether that individual committed perjury. If you commit perjury but are not convicted of perjury, then the statute doesnt apply. Thats what the cases seem to say. But in this case, I dont find any case that says that the Court has no discretion in this case, and so the Court pm 129
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will allow you to testify but you will testify clearly within the confines of the rules of evidence. And so the fact that youll be able to testify does not give you carte blanche to just get up on the witness stand and say anything you want to say. It doesnt work that way. MR. KIMBERLIN: Right. THE COURT: And so I suppose thats pretty clear. You dont have to testify, thats up to you. Now, I dont know that this will come up in this case, but I can see it looming. If questions that I ask about which an individual takes the fifth amendment to the constitution or asserts his or her fifth amendment rights under the constitution, on a criminal case, obviously that information, whatever it is that that individual is asserting the fifth for cant be mentioned, it cant be talked about, it cant even be mentioned that he or she took the fifth. But on a civil case, if a person asserts his fifth amendment constitutional rights, then theres a presumption that if he had answered the question, that it would not have been favorable for him. So thats something that you need to understand with respect to -- MR. KIMBERLIN: I dont think thats going to come up. MR. OSTRONIC: Your Honor? THE COURT: Yes? pm 130
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. OSTRONIC: May I -- THE COURT: Sure. MR. OSTRONIC: You opened the door for plaintiff to come back to you tomorrow with other case law. May I also come back to you on the issue? THE COURT: Oh, absolutely. Ill give each side a fair opportunity to respond. If he cites some case that says anything contrary to the motion that I granted, Ill be allowing you to -- or either side -- to get into information regarding these convictions which he says were a long time ago. This is a civil case. And the very basis of what gets us here is that, and you cant on the one hand say, yeah, I did that but you cant talk about it, and Im going to sue you for damages. MR. OSTRONIC: Well, my understanding also is 609 strictly deals with impeachment of the witness. So if the witness was up there and youre attacking the credibility, you could still bring it in on other grounds, which would still have been open. THE COURT: Well, well deal with that if it comes up under those circumstances. MR. OSTRONIC: Okay. But I would like the opportunity to re-introduce any facts or case law about the perjury conviction. THE COURT: All right. pm 131
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. OSTRONIC: Thank you, Your Honor. THE COURT: Now, are you ready to open? MR. OSTRONIC: Your Honor, can I just do a real quick, two minute consultation with my client? Because all of a sudden now we have somebody testifying that we had no idea was testifying five minutes ago. THE COURT: Well, hes not going to testify in five minutes. Thats for sure. So youll have time to do that after, when we stop. MR. OSTRONIC: I understand that, Your Honor. But were also talking about possible position. THE COURT: Okay. MR. OSTRONIC: Yes, Your Honor. THE COURT: Now, the window of opportunity for purposes of opening has kind of narrowed now. So it might be better to just do it in the morning. MR. OSTRONIC: That would be my preference. MR. KIMBERLIN: Im okay with that. THE COURT: Because I dont want to have you compact it to five minutes. That wont work. MR. OSTRONIC: Perfect, Your Honor. MR. KIMBERLIN: Thats great. THE COURT: In light of our conversation at the bench regarding the timing issue. So you can have a seat. Mr. Clerk, would you mind bringing the jury in? Im going to pm 132
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dismiss the jury. Either side invoking the rule on witnesses? MR. OSTRONIC: I will, Your Honor. MR. KIMBERLIN: No, Im not. THE COURT: They have, so -- ladies and gentlemen, when this case starts, if you are a witness in this case -- now that doesnt include parties. If youre one of the people being sued, you stay in the courtroom. But if youre a witness in this case, then you must remain outside the courtroom. You cannot discuss your testimony amongst yourselves or anyone else. If you do, your testimony is subject to be stricken an you wont be helping the party that youre testifying for. MR. KIMBERLIN: Is that after opening statements? (The jury entered the courtroom.) THE COURT: Ladies and gentlemen, you dont have to take your seats, just come up to the well. Counsel will remain, but Im going to excuse you. And if you could arrive at 9:00 in the morning, we will get through this case. In an abundance of caution, that is the plan. Now, the best laid plans of mice and men often run awry. But our goal is to accomplish what we have set out to accomplish. So please remember -- you can take your juror badges off and just lay them on that table. Your notes are on your seats and we will see you in the morning. Mr. Foreman, Ms. Polan is going to come out and shes going to ask you are all pm 133
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of your jurors present before she brings them into the courtroom. They will not be brought in until all of the jurors are present. We dont do, you know, three or four or anything like that. Well wait until everybody is here and then well bring you in. So if you could arrive at 9:00, well be ready to go. Thank you. THE CLERK: If all jurors could just wait outside, Ill get you your parking passes and stuff. THE COURT: Wait over by the elevators. Hell bring you your parking passes for tomorrow. (The jury was excused for the day.) THE COURT: Now, you were about to -- MR. KIMBERLIN: About the exclusionary rule -- thats after opening statements, right? THE COURT: No, during opening statements. MR. KIMBERLIN: During opening statements? So witnesses are excluded during opening? THE COURT: Witnesses have to remain outside. MR. KIMBERLIN: Okay. THE COURT: And you understand the purpose of the rule? MR. KIMBERLIN: Right, I understand. THE COURT: So your witnesss testimony cannot be influenced by things that they hear in court. MR. KIMBERLIN: But after they testify can they come? pm 134
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: If theyre testifying and theyre finished and theyre not going to be recalled, then the witness can sit in the courtroom if they want to. MR. KIMBERLIN: Great. THE COURT: But if they do that, theyre subject to being excluded from being recalled. MR. KIMBERLIN: I understand. THE COURT: And both sides must instruct your witnesses that they cant talk about the case among themselves or with each other until its over and done with. Any special equipment anybody needs? MR. KIMBERLIN: Ill probably be using a computer tomorrow, but I can bring it, for audio. THE COURT: If youre going to use it -- if you need the Court to provide anything, you need to go down to technical services on the terrace level and I hate to tell you this, but theres a cost. They dont just provide the equipment. MR. KIMBERLIN: Ill bring my own. THE COURT: Its not much, but there is a cost, if you need equipment that we can provide in technical service. We can provide almost anything equipment-wise, but there is a cost for it, because it doesnt come free to the county. MR. KIMBERLIN: Right. I understand. THE COURT: Anything else? MR. OSTRONIC: No, Your Honor. pm 135
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Now, there are no non-pattern jury instructions, are there? MR. OSTRONIC: Not from the defense side, Your Honor. MR. KIMBERLIN: Not that I know of. THE COURT: Theyre normal Maryland civil pattern jury instructions. MR. KIMBERLIN: And we listed those I believe in our pre-trial. THE COURT: You did list them in your pre-trial statements. Is there any other ticking time bomb -- well, thats a wrong metaphor. Are there any issues laying out there that are going to come up that you can envision? MR. KIMBERLIN: I dont think so. THE COURT: Sometimes we have to be very careful in our selection of metaphors. I always call counsel to task when they tell me about black sheep in the family. I like black sheep. All right. MR. KIMBERLIN: Thank you. THE COURT: Ladies and gentlemen, well see you in the morning. Now, word to the wise, my law clerk is out giving the jurors their passes for parking tomorrow. But can you see what we have tomorrow? THE CLERK: Yes, Your Honor. 9:15 reconsideration. THE COURT: Thats it? THE CLERK: And a 9:30 VOP. pm 136
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Okay, these matters are preliminary things that we set in the morning. But well start with you all and then when we take a break, well dispose of those -- a violation of probation which probably isnt going to go, and then a reconsideration of a sentence, which is probably going to be brief. And then well do that on recess and well start with you. Well hear opening and then after your opening, well take a break. Ill do those things. And then well be back with your first witness. Who is your first witness going to be? MR. KIMBERLIN: My daughter, Kelsie. THE COURT: Okay. All right. Any issues with that other than what we discussed? MR. OSTRONIC: Well, we discussed earlier the problem of bringing any witness, period. And Ill make the challenge at that time. THE COURT: Okay. MR. OSTRONIC: Which is what you want, right, Your Honor? THE COURT: Sure. All right, ladies and gentlemen, please have a good evening. Well remain adjourned. MR. OSTRONIC: Thank you, Your Honor. THE BAILIFF: All rise. THE CLERK: The Court stands in recess. (The proceedings were concluded.) pm 137
! Digitally signed by Patricia Musso DIGITALLY SIGNED CERTIFICATE DEPOSITION SERVICES, INC. hereby certifies that the foregoing pages represent an accurate transcript of the duplicated electronic sound recording of the proceedings in the Circuit Court for Montgomery County in the matter of: Civil No. 380966 BRETT KIMBERLIN v. AARON WALKER, ET AL