Kimberlin v. Walker Et. Al. Transcript 2.0 (8-12)

DEPOSITION SERVICES, INC.
12321 Middlebrook Road, Suite 210

Germantown, Maryland 20874
(301) 881-3344
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
------------------------------X
:
BRETT KIMBERLIN :
:
Plaintiff, :
:
v. : Civil No. 380966
:
AARON WALKER, :
:
Defendant. :
:
------------------------------X
Jury Trial
Rockville, Maryland August 1, 2014
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
------------------------------X
:
BRETT KIMBERLIN, :
:
Plaintiff, :
:
v. : Civil No. 380966
:
AARON WALKER, :
:
Defendant. :
:
------------------------------X
Rockville, Maryland
August 1, 2014
WHEREUPON, the proceedings in the above-entitled
matter commenced
BEFORE: THE HONORABLE ERIC M. JOHNSON, JUDGE
APPEARANCES:
FOR THE PLAINTIFF:
BRETT KIMBERLIN, Pro se
8100 Beech Tree Road
Bethesda, Maryland 20817
FOR THE DEFENDANT:
PATRICK F. OSTRONIC, Esq.
932 Hungerford Drive, Suite 28A
Rockville, Maryland 20850


APPEARANCES:

ALI AKBAR, Pro se
200 Capstone Drive Suite 108
Lynchburg, Virginia 24502

I N D E X

Page
Opening Statements:

Brett Kimberlin, Pro se 17

Patrick F. Ostronic, Esq. 13
For the Defendant

Akbar Ali, Pro se 27

VOIR
WITNESSES DIRECT CROSS REDIRECT RECROSS DIRE

For the Plaintiff:

Aaron Walker 53 -- -- -- --

William Hoge, Sr. 132 147 149 -- --

Ali Akbar 151

Stacy McCain 158 197 201 210 --

Kelsie Kimberlin 218

For the Defendant:

(None)

EXHIBITS MARKED RECEIVED

For the Plaintiff:

Exhibit No. 2 63 --
Exhibit No. 12 112 --
Exhibit No. 19 139 --

For the Defendant:

(None)

Page
Closing Arguments:

Ali Akbar, Pro se 263

For the Defendant
(None) --

Judge's Ruling 12, 266

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P R O C E E D I N G S
THE CLERK: -- in session, the Honorable Eric M.
Johnson is now presiding.
THE COURT: Thank you, good morning, be seated,
please.
THE CLERK: Anything preliminary, counsel?
MR. OSTRONIC: Yes, Your Honor, at your invitation
from yesterday to do some more research on 9104 issue, I did do
some and I believe we have an additional analysis that would be
beneficial to our cause and if I may approach I can give you a
motion, Your Honor.
THE COURT: Sure, thank you.
MR. OSTRONIC: Give you a copy of it.
THE COURT: Go ahead, I'll hear your argument.
MR. OSTRONIC: I'm basically, Your Honor, relying on
Article 1, paragraph 26 of the Annotated Code of Maryland which
says the meaning of may not. In this code and any rule,
regulation, directive adopted under it, the phrase may not or
phrases of like import have a mandatory negative effect and
establish a prohibition.
And I think that's consistent with the way we read
the other prohibitions which are also in the Court and Judicial
Proceedings title. For instance, the State cannot compel a
minister to divulge what's been given to them, so.
MR. KIMBERLIN: Yes, Your Honor, they're doing
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everything to try to get me not to testify. They don't want
the truth. But you have the discretion to weigh the probative
value of a 40-year-old teenage perjury conviction which
occurred when I did not have counsel present. And the Supreme
Court has been very clear that if you don't have counsel
present that you can't use things against you. And the fact
that the Judge you know, mistakenly failed to say something on
the record which would have expunged that conviction at 21 and
wanted to do so when I went back to him, but said that the
Seventh Circuit didn't allow these kind of decisions from the
Supreme Court to be retroactively applied. And it's simply not
fair to have me a victim of these four defendants being
attacked and not be able to defend myself. They've done
everything possible and you know, keep in mind, Judge Jordan
said that the statute was unconstitutional. He would allow me
to testify.
I've been allowed to testify in front of you two and
a half years ago. I've testified in front of Judge Burrell,
Judge Algeo. I've testified in front of all these judges and
now I get in front of a jury and I'm all of a sudden not
allowed to testify you know, when it comes down to crunch time?
And that's just not fair. A 40-year old conviction has no
probative value, at all.
MR. OSTRONIC: Your Honor, may I?
THE COURT: Yes.
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MR. OSTRONIC: First of all we have a transcript from
the August 7th hearing. Judge Jordan never said it was
unconstitutional. He said he suspected it may be in certain
circumstances. Second of all, we do have evidence of an
authorized biography of Mr. Kimberlin written about 20 years
ago which discuss that very case and he did have counsel.
MR. KIMBERLIN: Your Honor, --
MR. OSTRONIC: And the book says in there
MR. KIMBERLIN: Your Honor, if I may, this is the
book Citizen K --
MR. OSTRONIC: American Journey of Brett Kimberlin by
Mark Singer which plaintiff here cooperated in and it says here
at trial,
"Another grand jury was convened and this one
indicted Kimberlin for perjury. At trial his lawyer
repeated the assertion that it made no sense for his
client to be selling LSD to people who manufactured
it.
THE COURT: Is that the same case?
MR. KIMBERLIN: Judge, no it wasn't the same case and
he's trying to --
THE COURT: Hold on a second, don't talk to him.
Generally talk to the Court, not to each other.
MR. KIMBERLIN: Okay, all right. It was not the same
case --
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THE COURT: If you all want to talk to each other
I'll give you a break and let you go out in the hallway.
MR. KIMBERLIN: Sir, I was called in front of Grand
Jury. I did not have counsel at the Grand Jury. I had counsel
at the trial. And counsel at that trial and the judge at that
trial said that I was being sentenced under the Youth
Corrections Act. The Youth Corrections Act says that at 21
years old that conviction is expunged forever. The judge
failed to say these three words, no benefit finding. And
that's what Dorszynski said in the Supreme Court. If the judge
doesn't make a no benefit finding the sentence is wrong. And
the court sent back all kinds of cases that were on appeal at
that time, the Supreme Court. And all those guys got to get
resentenced.
My case just happened to fall right in that little
crack. And so I went back to the judge when I hit 21 and said
I want my case expunged under the Youth Corrections Act like
you thought. And the judge says oh yeah, Dorszynski says I
made a mistake, okay. And the problem was in the Seventh
Circuit they couldn't retroactively apply Dorszynski. That's
it. It's a simple little thing. And everybody, I had counsel
at trial but I did not have counsel at the Grand Jury.
MR. OSTRONIC: Your Honor, I'll just point out that
Dorszynski was a Seventh Circuit Court case so it did go back
to the case on remand from the Supreme Court and it did go back
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up to the Seventh Circuit and the Seventh Circuit then did
consider what the trial court did and corrected the mistake.
But it was a Seventh Circuit case.
MR. KIMBERLIN: Well of course it was a Seventh
Circuit case but that's not the point. My case was not
Dorszynski. That wasn't my case. Dorszynski raised that issue
of the judge failing to make a no benefit finding at trial and
his failure to make a no benefit finding at sentencing
therefore invalidated the sentence. And so in my case
everybody assumed I was being sentenced under the Youth
Corrections Act. The judge did not have the direction from the
Supreme Court under Dorszynski that he had to specifically say
I find there's no benefit from the Youth Corrections Act and
therefore I'm sentencing Mr. Kimberlin as an adult. He didn't
say that. Because everybody assumed that I was being sentenced
as a juvenile, as a youth under the Youth Corrections Act.
And when I went back and said judge, you know, this
thing needs to be expunged, I hit 21. I didn't do anything
wrong and the judge said yeah, well but I can't apply
Dorszynski retroactively for some, whatever weird legal
technical reason. Had my case been on appeal when Dorszynski
was ruled on, it would have automatically applied, you know.
And so that's the issue.
So for now 40 years later to say that I can't defend
myself or testify in this case is totally unfair.
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MR. OSTRONIC: Your Honor, I will also point out, if
I may that the Youth Corrections Act there would have been
legitimate reasons for somebody not to want to be sentenced
under the Youth Corrections Act. The Youth Corrections Act
subjected you at that time to four to six years under the
supervision of the state.
Mr. Kimberlin's sentence was for a mere 30 days of
which he served 21 and it was just for a year. You would have
had some real reasons why you wouldn't want --
MR. KIMBERLIN: Your Honor --
MR. OSTRONIC: Also, Your Honor, as documented in his
authorized biography, it notes that Mr. Kimberlin considered
but then decided not to file an appeal on his sentence.
THE COURT: All right, gentlemen, I think you've
exhausted your argument on that issue.
JUDGE'S RULING
THE COURT: Counsel, the Court will not change its
ruling on the motions yesterday. I think we're struggling in
this case is the time period that has elapsed since this
perjury conviction occurred over 40 years ago. That's a long
time and there are several other areas of the law where for
example evidence of criminal history, criminal records would
not be subject to be used for impeachment if it's been more
than 15 years since it occurred. I think it's a question of
fundamental fairness and I dont want to hear any more on the
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motion.
The rulings that the Court made yesterday will stand.
All right.
Bring the jury in.
(The jury entered the courtroom.)
MR. OSTRONIC: Your Honor, one other motion, one
other matter then.
THE COURT: Yes, sure.
MR. OSTRONIC: Mr. Akbar here wishes to disengage me
as his counsel and self-represent.
THE COURT: Come up.
(Bench conference follows:)
THE COURT: You've thought about this representing
yourself. You have a lawyer that at this point has done a fine
job in representing you.
MR. AKBAR: I think that there's added benefit. I
think the plaintiff has benefitted from being pro se. I think
that the jury will hear some things from me and arguments that
I'll make that a lawyer and member of the bar wouldnt. I'll
try to keep it brief. I'm not going to exhaust cross-
examination or anything. I'd like to make an appeal to the
jury.
THE COURT: I don't want the notion that Mr.
Kimberlin is getting any different treatment than he would be
getting if he's represented by a lawyer.
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MR. AKBAR: And I wouldn't assert that to the jury.
THE COURT: I mean you can disabuse yourself of that.
The rulings that this Court has made had nothing to do with
whether he was represented by counsel. I think you ought to
really reconsider that.
MR. AKBAR: Well I think there's an emotional appeal
that I can make with the jury that my attorney can't. So
regardless of rulings on the motion --
THE COURT: You can certainly testify --
MR. AKBAR: I know.
THE COURT: -- and the jury will hear that.
MR. AKBAR: I know, but I think that I can also make
an argument. I can make assertions that will be made in Mr.
Kimberlin's questioning of me or you know during cross.
THE COURT: Why can't the questioning by counsel
elicit the same whatever that information is that you want out,
assuming arguendo that it's admissible in the first place. And
this is the problem that Mr. Kimberlin is going to run into.
MR. AKBAR: Right.
THE COURT: But squarely into rules of evidence.
MR. OSTRONIC: Can we have a couple of minutes to
recess, but I, you know --
THE COURT: I'm inclined to have opening statements
and then take a recess. And if you still are of that opinion
we'll deal with it then.
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MR. AKBAR: Would I be allowed to give an opening
statement then?
THE COURT: I'm not hearing a reason, a legal --
MR. AKBAR: I'd like to make an argument. I'd like
to make a contention. I'm not saying that I would present --
you know, there are fundamentally multiple you know legal
defense strategies that are at our disposal. They're going to
pursue one, I'd like to pursue another. And I'd like to not
tip it off to Mr. Kimberlin.
THE COURT: Well the problem is he still represents
the other defendants so he's still in the case.
MR. AKBAR: Yeah.
THE COURT: So if you want to represent yourself, you
understand that a lawyer can be very helpful --
MR. AKBAR: Yes, sir.
THE COURT: -- in preparing you. A lawyer who knows
the rules of evidence, he knows the rules of procedure and let
me just say you're not a lawyer.
MR. AKBAR: Right.
THE COURT: You don't have any legal training.
MR. AKBAR: Correct.
THE COURT: But you're still representing, well the
other defendants are not sitting at counsel table.
MR. OSTRONIC: They're not sitting up there because
we didn't want a whole crowd of gaggle behind him -- we asked
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before about defendants sitting down there, correct?
MR. OSTRONIC: I asked -- You want them up front with
us?
THE COURT: Yes, I mean it's kind of unusual that
parties wouldn't be sitting there.
MR. OSTRONIC: Okay, we just have four then just
crowded --
THE COURT: Yes, well we'll --
MR. OSTRONIC: We had the chairs but they were all
bunched up there.
THE COURT: Well as long as the jury knows that they
are parties in this case.
MR. OSTRONIC: I'm going to be pointing them out in
my opening statement.
THE COURT: Okay, all right. Okay, well I'll grant
your motion. So you're now representing who?
MR. OSTRONIC: Hoge, Walker --
THE COURT: And --
MR. OSTRONIC: -- McCain.
THE COURT: McCain, okay.
MR. KIMBERLIN: Your Honor, may I say something?
THE COURT: Well I dont know, how you --
MR. KIMBERLIN: I mean it sounds to me like there's a
conflict in defenses and I'm concerned that maybe they are
trying to finesse this to try to get in something that's not --
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THE COURT: Well, but whether he's represented by a
lawyer it's not your call.
MR. KIMBERLIN: No, I know --
THE COURT: It's up to him.
MR. KIMBERLIN: -- it's not. I know, but I'm just
saying that it may be a strategy here that they are trying to
get something in that counsel can't do for ethical reasons. So
they're trying to get it in --
THE COURT: Well if it's not ethical for counsel it's
not ethical for them either. So we'll cross that bridge if we
get to it. Thank you, all right.
MR. OSTRONIC: Thank you, Your Honor.
THE COURT: Yes.
We will stop after opening statements.
(Bench conference concluded.)
THE COURT: Mr. Foreman, members of the jury, good
morning.
THE JURY: Good morning.
THE COURT: Good morning, wet morning. Mr. Clerk.
THE CLERK: Please stand and raise your right hand.
Ladies and gentlemen of the jury, you and each of you do
solemnly promise and declare that you shall well and truly try
the issues joined between plaintiff, Brett Kimberlin and
defendants Aaron Walker; William Hoge, Sr.; Robert Stacy
McCain; and Ali Akbar and a true verdict give according to the
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evidence. Please respond.
THE JURY: Yes.
THE CLERK: Please be seated. Ladies and gentlemen
of the jury are you all sworn?
THE JURY: Yes.
THE CLERK: Thank you.
THE COURT: All right, sir, you may address the jury.
OPENING STATEMENT BY BRETT KIMBERLIN, Pro se
MR. KIMBERLIN: Good morning.
THE JURY: Good morning.
MR. KIMBERLIN: My name is Brett Kimberlin. I'm a
father. I'm a husband. I'm the director of a non-profit
called Justice Through Music. We work with young people to get
them involved with civic participation. We've worked with the
State Department, brought democracy activists acrossed
(phonetic sp.) the world so that they could get training at my
non-profit. I'm also a musician, a composer. Ive composed
music for different movies, independent movies. I create a lot
of videos. I created videos on You Tube that have millions of
views.
I'm also a felon. I was convicted 35 years ago for
something serious. And at that time it was something I didn't
do. I fought the case. I went through three trials. I was
found guilty finally after three. It was a very controversial
case. It involved the use of hypnosis on witnesses. Six
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witnesses were hypnotized who testified that I did something.
There was other evidence. It was a circumstantial case. I was
given a 50 year sentence. 50 years. And rather than wallow in
the prison system, I got a double degree. I helped lots of
other inmates get out of jail wrongfully or had sentences
overturned. And my case generated some interest in the legal
community.
One of the people that took an interest in my case
was a guy named Erwin Griswold. Erwin Griswold was a dean at
Harvard Law School. He was also the Solicitor General of the
United States under Republican and Democratic administrations.
He argued more cases in the Supreme Court than any living human
being. He took my case pro bono. Pro bono means no money.
Because he said I was wrongfully convicted. Dean Griswold was
in his 80's at the time and he became a mentor to me. He
introduced me to his wife, Harriet, and Harriet was a
paraplegic, polio. I would go to his apartment, have dinner
with him and his wife and Dean Griswold trusted me and loved me
as a grandson almost. When Dean Griswold died, his life was in
the Supreme Court. And Harriet invited me to take her to the
Supreme Court. She had kids. She invited me, I was there with
her. There was also court justices there, you know, that had
been Supreme Court justices and current Supreme Court justices.
Every assistant general was there, every attorney general they
were there and I was sitting next to Harriet. So as you can
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guess I wasn't doing 50 years if I was sitting next to Harriet.
So that case was for explosives, explosive devices.
There were eight explosive devices that occurred in Indiana. A
person was injured in one of those. The person would
eventually, eventually committed suicide. His wife filed suit
against me for wrongful death in another twist of my life. The
judge in the case, his name is Michael Dugan, III and it was
here in Superior Court, Indianapolis. Judge Dugan didn't let
me go to the trial. I was in prison at the time. And Judge
Dugan ran into my attorney, my trial attorney. His name is
Nile Stanton. He ran into him in a bar in Indianapolis. And
he told Nile, he says listen give me 10 grand and I'll let
Brett walk. So Nile came to me and says gee, you know, I ran
into Judge Dugan he says he wants 10 grand and you can walk. I
said well, Nile, I didn't do that crime, you know. I can't pay
$10,000, that's not right. But what I did do is I contacted
the FBI and I told them. I said this guy is corrupt. What did
the FBI do? They wire tapped his chambers, wire tapped his
chambers, started listening to all his conversations. Guess
what, they arrested him. They indicted him. They gave him 18
years in jail.
So, I had a wrongful conviction and then I had a
judgment against me that was issued by a corrupt judge. I
testified at that judge's sentencing and the federal judge that
sentenced him was pretty pissed off. Corrupting the judicial
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system and destroying lives like mine? Eventually that
judgment was, for lack of a better word; nullified. It's not
out there anymore. I don't, I'm not subject to that judgment.
So that's a little bit about my history.
When I got out of jail I was lucky because in jail I
helped a lot of immigrants. And one of those immigrants was
trying to escape religious persecution in the Soviet Union.
And so I helped them while I was in prison and when I got out I
got a nice gift. And that gift was hey you helped us and now
Ukraine has broken away from the Soviet Union and we want to
help you. And it was a lady and her son, Julia Carmon and Alex
Carmon. And Julia's ex-husband was named Valentin Carmon.
Valentin Carmon happened to be counsel to the President of
Ukraine. And so Valentin flies over here from the Ukraine and
he says Brett, youve helped my family when you didn't even
know them, nothing. And he says I want to help you. I need an
American partner to do business in Ukraine. We've just become
free. And, so the, we end up starting a business called Lada
International. Lada is the name of a car and my partner was
involved in cars. And so things moved along pretty quickly.
All of a sudden, boom, I'm flying to Ukraine every couple of
weeks. I'm on President Kushma's plane. I'm over here at
Andrew's Air Force Base. I'm at Pyor (phonetic sp.) House.
You know, it was wild, I mean here, you know, I just got out of
jail and I'm doing all this and wow, this is pretty
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interesting. A lot of money coming in and we were selling
tires to Ukrainian Government, getting oil and getting steel
and all this stuff. And you all heard there's a war going on
in Ukraine right now. I was in all those cities Donetsk,
Mariupol, Krasnoarmiysk, all those places, I was there. I know
those people.
And so one of those trips I met a girl. That girl
became my wife. Now I didn't go over there to get married. I
didn't want to get married, you know. I had been in jail a
long time. I wanted some freedom. And I didn't expect to get
married. But this girl her name was Tanya, Tetyana and she was
the niece of the deputy mayor of Nepopatras (phonetic sp.)
which is the second largest city in Ukraine.
And so at first her mom, her dad had gotten killed by
a, in a dispute, business dispute over there. She was a single
child. Her mother had a rough time after dad died and Tanya
had a rough time, too. I mean she was the apple in her daddy's
eye. But anyway at first, you know, I just wanted to help her
out, wanted to get her mother set up and stuff like that. She
went and stayed with some friends of mine in Nepopatras. They
sent her to English class and things like that. And eventually
her aunt brought her to the United States. She was 17. When
she turned 18 we got married. Now we have two beautiful kids
back there. You'll get to meet one of them in a minute, Kelsie
and Karenna. Kelsie's 15, Karenna's 10. And so Tanya she
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loves America. She loves America. She still fit in. She took
college courses. She took English as a second language. She
got her high school degree here. They wouldn't accept the one
from Ukraine. So she redid it here, got her high school
diploma, high school degree, not diploma. And then she became
a preschool teacher at Kenwood Park Children's Center which is
near Whitman.
And then her mom died. Her mom had become an
alcoholic. She died. Tanya, she took it really hard, sent her
home and she would go home every six months or something, stay
with her family four or five weeks and come home. But when her
mom died it was really hard. So she had a breakdown, a nervous
breakdown, a mental breakdown. She was suicidal. She started
suffering from depression. She started having bipolar
episodes. We had to, I had to take the very difficult step as
a husband to get her help. She was suicidal at the time. So I
asked finally, I asked the court for assistance. I said can we
please get my wife evaluated. Can we please get her help and
the court said yes. So she went to Suburban Hospital, stayed
there for days and weeks. She came back, she was much better.
She was on medication. You know, she seemed to be getting
better. Then these guys came into our lives, Mr. Akbar, Mr.
Walker, Mr. Hoge and Mr. McCain. They came into our lives. It
has been a nightmare ever since. It has been horrible ever
since.
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Tell you what they did. Mr. Walker right there, he's
an attorney. As an attorney you know what he did on his spare
time, he had a blog called Everyone Draw Mohammed. He ran that
blog not in his real name, but in the name of Aaron Worthing.
And he had people from all over the world sending in vile
depictions of the Prophet Mohammed. I'm not Muslim, I'm
Christian. But everybody has a right to believe what they
believe and to do so without being defamed.
So Mr. Walker asked people to send these vile, nasty
depictions of the Prophet Mohammed to his blog. He would post
them and he said I want pictures that are fatwa worthy. A
fatwa is an edict by a cleric of Muslim faith. It's a
direction. It's an order. And sometimes fatwas result in
death sentences or death orders.
Mr. Walker asked people to send, eventually there
were 800 depictions, 800 depictions of Prophet Mohammed on this
blog. Our soldiers are getting killed overseas because of this
stuff. Benghazi, why did Benghazi happen? Because some nut
down in Florida defamed, blasphemed the Prophet Mohammed.
Osama Bin Laden, that was his rationale for killing Americans
because people in America defamed Prophet Mohammed.
So, all a sudden I got this other crazy guy named
Seth Allen and he's attacking me. He's really more of a mental
case. I sued him in this court. Somehow Mr. Walker and Mr.
Allen got involved with each other somehow, I don't know. And
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Mr. Allen wrote Mr. Walker a letter and says I might as well
just come to Maryland and murder Brett Kimberlin. Murder him.
So, Mr. Walker, and this was sent to four different
or five different people and all these people on this list are,
their extreme Tea Party wing of the parties out there. And so
the police called me because one of those people on that e-mail
list said you know, this guy's about to murder Brett, Jesus.
MR. OSTRONIC: Your Honor --
THE COURT: Sustained.
MR. KIMBERLIN: Okay, the police call me. I'm on
vacation with my wife and kids. Out visiting my sister out
West and I get a call, in August about three years ago and the
cop says I'm from Massachusetts, Eastern Massachusetts and
there's this guy who's going to kill you when you come back to
Maryland.
MR. OSTRONIC: Your Honor.
THE COURT: Counsel, approach.
MR. OSTRONIC: I cut as much slack as I could. This
is just --
MR. KIMBERLIN: I'm trying to lay the groundwork for
what's happening, why these guys are involved.
THE COURT: But much of what you're talking about is
not in any way admissible in evidence.
MR. KIMBERLIN: Well I wouldn't say that. I'm going
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to get -
THE COURT: This is supposed to be a brief summary.
MR. KIMBERLIN: Okay, all right, I'll make it brief.
I'll make it brief.
THE COURT: I sustain the objection to you talking
about issues that have nothing to do with what you allege these
men did to you.
MR. OSTRONIC: Thank you, Your Honor.
MR. KIMBERLIN: They want me to cut it short.
So, eventually Mr. Walker is identified by me in a
court filing, not as Aaron Worthing, but as Aaron Walker. He
came into court that day, followed me out of the courtroom, one
of these courtrooms and assaulted me. I went to the hospital.
MR. KIMBERLIN: And so he took his Jihad against
Mohammed, Prophet Mohammed, against me. I now, Prophet
Mohammed is no longer the pedophile, I'm the pedophile. Why am
I a pedophile? Because I married my wife when she was 18 years
old.
MR. OSTRONIC: Your Honor everything he is talking
about he can bring into evidence later on.
MR. KIMBERLIN: Every single day --
MR. OSTRONIC: Objection --
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THE COURT: I'm going to sustain the objection to
that.
MR. KIMBERLIN: Every single day --
THE COURT: Sir, you need to talk about what --
MR. KIMBERLIN: Okay.
THE COURT: -- the issues are in this case.
MR. KIMBERLIN: In this --
THE COURT: What you allege has been done to you.
MR. KIMBERLIN: All right, all right. So, my wife
couldn't take this. She snapped, stress. She started acting
out, being suicidal, running off with guys.
MR. OSTRONIC: Your Honor, again --
THE COURT: Sustained, just objection --
MR. KIMBERLIN: Okay, and so what did I do? I'm a
loving husband. I married my wife. She came from overseas.
She's got no family. What do I do? Do I run down to the court
and divorce her, kick her out on the street? She's the mother
of my two kids. No, I go back to court last summer and I said,
please --
MR. OSTRONIC: Objection, Your Honor.
MR. KIMBERLIN: These guys followed her out of court.
MR. OSTRONIC: Objection.
MR. KIMBERLIN: They get her, coach her --
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THE COURT: Sustained. Come here.
THE COURT: Here's the problem, you have claimed that
you were defamed and shown in a false light and you haven't
even talked about that.
MR. KIMBERLIN: I'm getting there right now.
THE COURT: You need to do that.
MR. KIMBERLIN: Okay, but --
THE COURT: I mean if you're going to do that --
MR. KIMBERLIN: But the whole thing is that they
coached my wife to saying something false.
THE COURT: Well I understand that --
MR. KIMBERLIN: And, and, and --
THE COURT: -- but none of that stuff is, how are you
going to get that into evidence? You're not going to get that
material into evidence.
MR. KIMBERLIN: Oh, I will, I mean --
THE COURT: You need to talk about what you alleged
they did to you.
THE COURT: Apparently, in your papers you claim that
they were publishing material --
MR. KIMBERLIN: Yeah --
THE COURT: -- that wasn't true.
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MR. KIMBERLIN: Right, okay. Thank you.
MR. OSTRONIC: Your Honor - Can we (Unintelligible
9:56:53) conspiracy is thrown out and all these other charges -
-
THE COURT: You can't talk about the counsel have
thrown out, only that's left in this case.
MR. OSTRONIC: Okay.
THE COURT: Okay.
MR. KIMBERLIN: So for the past year, my kids, my
family, my wife have been subject to a Jihad --
MR. KIMBERLIN: Every --
MR. KIMBERLIN: I'm a pedophile. Mr. Walker
publishes this.
MR. KIMBERLIN: You asked me to show what they've
done, Your Honor. I'm showing --
THE COURT: I didn't ask you to do it. I told you --
THE COURT: -- what you should not be talking about.
MR. KIMBERLIN: Okay, every day, this case has to do
with defamation and false light. They portray me as a
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pedophile and a murderer. A murderer because this man
committed suicide 40 years ago, 35 years ago and I have a
wrongful death judgment against me which is no longer valid.
They call me a pedophile because I married my wife when she was
a teenager. And they didn't just say this based on some court
document that my wife filed when she was in a bipolar episode,
they say it every day. My wife wrote to them --
MR. KIMBERLIN: It's coming into evidence.
THE COURT: Maybe, we'll see.
MR. KIMBERLIN: I told them don't publish it, that's
not true.
MR. KIMBERLIN: It hurts my family.
MR. KIMBERLIN: So thats what this case is about
here. Am I a father, a husband, a composer, an active member
of the community, every day out working with young people, with
senators, congressmen all these things, is that me? Is that me
now or am I what these guys say, a pedophile and a murdered?
My daughter, she's going to testify. She's 15 years
old. She's been bullied out of two schools, Montgomery County
Schools, and she'll testify to this.
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MR. KIMBERLIN: My daughter is a gifted --
MR. KIMBERLIN: I'll let my daughter speak for
herself. So that's what it boils down to, defamation, false
light. What are these guys doing? How is it harming me and my
family? There's two types of defamation.
There's defamation where somebody just says oh, that
guy is no good or that guy did this. And then there's what
they call per se defamation which is where a guy or person or
persons falsely accuse of someone of a crime, of something that
they didn't do that's so bad, so heinous that the harm is
automatic. I don't have to prove damages when it comes to per
se defamation at all.
MR. KIMBERLIN: The damages are presumed.
THE COURT: Sustained, this is an opening statement,
sir. You are arguing.
MR. KIMBERLIN: Okay. So your job here is to decide
whether you want to believe these guys. This is Ali Akbar.
Ali Akbar is a convicted felon.
MR. KIMBERLIN: Mr. Walker, publisher of the
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Mohammed hate blog --
MR. KIMBERLIN: Mr. McCain right there with the red -
- Southern Poverty Law Center defined him --
MR. KIMBERLIN: and Mr. Hoge, an ordained minister.
So, that's my opening statement. And I ask you as jurors to
stop this, to send a message that this kind of conduct by
people is not acceptable in today's society. It's what's
causing all this grief, you know. Yesterday Robin Williams
died because of depression, killed himself. I don't want that
to happen to my wife.
MR. KIMBERLIN: I want this to stop. I want my kids
to be able to go to school without being bullied with this
garbage. I want my wife to feel like she's safe. She doesn't
have to pick up, go on the internet and see this terrible --
MR. KIMBERLIN: And so I'm going to ask you from the
bottom of my heart to do what judges have been unable to do.
They, Mr. Walker and Mr. Hoge have filed --
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MR. KIMBERLIN: -- criminal charges against me.
MR. KIMBERLIN: It's got to stop and it can stop with
you. We deserve it. My family deserves it. My mother who is
here deserves it. My kids deserve it. My wife deserves it.
Society deserves it. You have to stop this, this hatred --
MR. KIMBERLIN: -- personal attacks.
MR. KIMBERLIN: Thank you.
THE COURT: Thank you. Deputy you have somewhere to
go?
THE DEPUTY: Yes, Your Honor.
THE COURT: Mrs. Tate, did Ms. Sandler go to another
courtroom or is she--
THE CLERK: Yeah, she had to go to trial in 9C. I
can go get her.
THE COURT: 9C, what is that?
THE CLERK: Courtroom 9C.
THE COURT: Okay, all right.
THE CLERK: (unintelligible 10:04:37) My bad.
THE COURT: I've been in this building for 15 years -
- THE CLERK: Sorry.
THE COURT: -- and the numbers have now changed to
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the rooms, all right, so who is the judge?
THE CLERK: Starts with an H, I forget.
THE COURT: Okay --
THE CLERK: I can go get her though --
THE COURT: Thats all right. Yes, why don't you do
that.
THE CLERK: Okay.
THE COURT: Counsel.
MR. OSTRONIC: Thank you, Your Honor. One other
thing, yesterday we said we were going to sequester the
witnesses. So if there are any witnesses here can we have
them --
THE COURT: Well, that was up to you all to make sure
that your witnesses --
MR. OSTRONIC: Okay.
THE COURT: -- were not in the courtroom.
MR. OSTRONIC: Can I now ask them --
THE COURT: Ladies and gentlemen, if you are a
witness in this case, not a party, parties can remain
obviously, but if you're a witness you must remain outside the
courtroom. Do not discuss your testimony among yourselves or
with anyone else if you are going to be a witness or a
potential witness, all right.
MR. OSTRONIC: Thank you, Your Honor. May I
approach?
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THE COURT: Sure.
OPENING STATEMEMNT BY PATRICK F. OSTRONIC, Esq.
ON BEHALF OF DEFENDANTS
MR. OSTRONIC: Good morning ladies and gentlemen of
the jury, Your Honor, witnesses, I mean spectators, an old
observation says if you want to make God laugh tell him your
plans. And as Judge Johnson alluded to yesterday, no matter
what your plans were they probably do not include being here
today. But why are you here? Why are we here today?
Plaintiff has already given you somewhat of his
summary. You've heard from him. But his summary doesn't give
you the why, why you're here. This is not the result of some
amped up neighborhood feud. The defendants in this case have
never had a personal relationship with the plaintiff. In fact,
the defendants don't even live here in Montgomery County. Mr.
Walker here is up in Northern Virginia. Mr. Hoge here is down
from Carroll County. Ms. McCain over here is in from West
Virginia. Mr. Akbar here is in from all the way from Texas.
We're talking major inconveniences here. But they, like you
are here because Brett Kimberlin was offended by some of the
things they wrote. And that is what this law fare is all
about. Brett Kimberlin, this man here wants to shut these
people down, wants to silence these gentlemen from their
speech. And he wants to do it because he doesn't like some of
what they're talking about, how they portray him. They've
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offended him. They've upset him.
And plaintiff believes, whatever reason that his
bruised feelings somehow entitle him to government-enforced
remedy. And that ladies and gentlemen is why you're here.
Because Brett Kimberlin wants you to be his enforcer. He wants
you to bring him comfort and shut these gentlemen down.
Plaintiff uses the word they a lot. They did this. They do
that. They say this. But I don't want you to let him muddy up
your understanding of this case. You are sitting as a jury on
four lawsuits initiated by this plaintiff, all of which have to
be handled separately by the plaintiff. There is no overlap
between them. Each one stands no their own.
Now my first profession out of college, long before
law school was in the Navy. Back then our focus was on the
Soviets who at the time it seemed to be a permanent force in
all of our lives until they weren't. Which was a nice thing,
the world is a better place today. Now my work takes me
frequently to Eastern Europe, primarily Poland, but also to
places like Bulgaria, Lithuania and even Ukraine.
Twenty five years ago if I had gone to any one of
those places I probably would have lost my security clearance.
Now, it's just the way I make a living. I mention all of this
because of course, none of these places would have changed had
there not been people there who had the courage to speak out
about the evils they were living under. Fortunately there were
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those people who stepped forward.
However, here in America we should be long pass the
time when speaking out is a matter of courage. Our First
Amendment does not give us free speech. We have that
inherently. Our first amendment guarantees that our Government
will not take that freedom away from us. The temptation to do
so will always be there and there will always be players out
there who seek to take our freedoms for their comfort. And
again ladies and gentlemen, that's why you're here because
Brett Kimberlin is trying to enlist your help to just such an
effort. Thank you for your attention.
THE COURT: All right, you're going to make a
statement in just a minute. Ms. Sandler, was what's going to
happen briefed?
MS. SANDLER: I could determine that in a few
minutes, but I need to speak with the agent first.
THE COURT: Is that the agent you're speaking with?
Okay.
MS. SANDLER: I don't know, it will probably take
about 10 minutes.
THE COURT: That's not brief. What about the other
case? You're not in that case.
MS. SANDLER: I'm not in the other case. Mr.
Gottlieb's right outside, Your Honor.
THE COURT: Okay, well tell him don't go away and
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you're going to do your opening and then we'll take a recess
and we'll dispose of both of those cases at that point, all
right. Go ahead, sir, yes.
OPENING STATEMENT BY ALI AKBAR, Pro se
MR. AKBAR: Your Honor, ladies and gentlemen of the
jury, big howdy from Texas. My name is Ali Akbar, I'm the
president of the National Bloggers Club. I'm here because I
read these gentlemen's blogs and Mr. Kimberlin doesn't like it.
I share some in Twitter and he doesn't like it. We're here
very simply because he doesn't like us. He begged for you to
stop this and I pray that you do.
The burden is on the plaintiff, Mr. Kimberlin, and
it's exceedingly high. He must prove a couple of things and he
slightly alluded to. But he must prove that I said false
things, wholly false things. He must also prove that I
knowingly said these false things. And on top of that he must
prove that I did these things with an intention to harm him.
On top of that if it wasn't high enough, he must prove that
there are actual damages.
Now, he's already alluded to his past and I ask that
you consider that when you make your decision. Now Mr.
Ostronic did reference, he'll use the word they, but the
question you're going to have to ask yourself against every
defendant, but principally me is what is he alleging that I did
besides share articles that were written by other people. He
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has provided me with no documentation to support the matters of
law required of him and a smart money defense is to let his
case fall flat.
We know that he can't prove these things as a matter
of law. Truthfully he can't even prove these things as a
matter of rhetoric or persuasion. Mr. Kimberlin isn't suing me
for creating rumors or baselessly speculating about his past.
He's suing me as an attempt to silence me. He's suing me for
daring to post links and support bloggers which is my
constitutional right.
When there is real harm, no matter the individual or
their past, they should find relief. But when an individual
fabricates claims, the harms and rights of the accused are
actually being violated. Now I understand that Mr. Kimberlin
isn't on trial for any of his past crimes, any of his
wrongdoing or his present evil behavior. But the First
Amendment protects free speech. It protects mean speech. It
protects speech that many of us wouldn't agree with. In fact
that's why we have a first amendment to protect dissent against
power. It certainly protects me from sharing information from
police reports, his authorized biography and people who know
the plaintiff best like his wife. I know this and it also
protects truth.
That's why I'm self-representing today because it
would have been easy to just let his case fall, but I thought
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that would have been a wasted opportunity to speak the truth
about Brett Kimberlin and his past. I want this jury to affirm
the First Amendment. I want it to be said that true things can
be said about bad people.
Mr. Ostronic is a very competent counsel. He has a
winning defense, but I needed to stand before you today to say
that I'm a good man and I want to be able to say true things as
the head of the National Bloggers Club and that bloggers can't
be silenced by Mr. Kimberlin.
This is a 30 year campaign he has on silencing
journalists, bloggers, witnesses who have testified and it has
to end. I beg that you take this call and stop this now.
Thank you.
THE COURT: Thank you. Mr. State, is Ms. Sandler
talking with the agent?
MR. BARNES: Yes, Your Honor.
THE COURT: Because if we start with the witness it
will be a longer wait so tell her that --
MR. BARNES: Understand.
THE COURT: -- speak now or forever hold her peace.
MR. BARNES: Thank you, Your Honor.
THE COURT: Ladies and gentlemen, just as soon as we
determine whether we can dispose of two very brief matters or
not, if we can I'll give you a break and then you'll come back
and we'll start with the witnesses. If we can't we'll start
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right now and they'll just have to wait.
(Pause.)
THE COURT: All right, Mr. Foreman, members of the
jury you can take a break for 10, 15 minutes. If you want to
go down, well can't go downstairs unless you go outside to get
to the cafeteria. I don't know if it's raining or not. But if
you want to do that. There's also, no, I wouldnt recommend
the machines, okay. But you can take a 15 minute break and
when you come back we will start with witnesses. Counsel,
could you approach, please. Please remember don't talk about
the case among yourselves or with anyone else.
THE COURT: Who is your first witness?
MR. KIMBERLIN: My daughter.
THE COURT: What's the purpose of calling her?
MR. KIMBERLIN: She's going to testify --
THE COURT: You are the plaintiff in this case.
She's not a party.
MR. KIMBERLIN: No, she's not a party, but she's
going to testify about things that have occurred to us and
things that have occurred to her, the harm that's occurred to
her.
THE COURT: In terms of --
MR. KIMBERLIN: About and she's going to talk
about --
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THE COURT: In terms of what? I mean that has
occurred to her. I mean --
MR. KIMBERLIN: She's going to talk about my wife and
she's going to talk about the fact that I'm not a pedophile.
That I don't, I mean she needs to testify. She needs to talk
about the harm. She's been bullied out of two schools because
of the things these guys have said.
MR. OSTRONIC: Unless there's a direct collection,
they've been --
THE COURT: How are you going to prove that, though?
MR. KIMBERLIN: Well, I'm going to put her on the
stand and let her testify about the things that have happened
at school because of the things that are on line.
THE COURT: You mean things that have been said to
her?
MR. KIMBERLIN: Things that have been said to her.
Things that have been done to her.
THE COURT: That's total hearsay. How is it
admissible under the rules of evidence?
MR. KIMBERLIN: Well, it's not hearsay if what
happened to her as a result of it.
THE COURT: Well, if it's an out-of-court statement
and obviously these were statements that were made out of
court, things people said to her -- Deputy, you can bring
somebody out, I don't care who --
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MR. KIMBERLIN: I'm not going to ask her, Your Honor,
I'm not going to ask her what other people said. I'm going to
ask her what she said, what happened to her. And I'm going to
ask her about my wife and I'm going to ask her about --
THE COURT: But where is the segue? How does it
connect to these defendants? See you're going to have to prove
that what each one of these individuals did --
MR. KIMBERLIN: Right.
THE COURT: And what is she going to testify that any
one of these men did to her?
MR. KIMBERLIN: Well that they posted stuff --
THE COURT: You can't say they.
MR. KIMBERLIN: Okay, that and I will get to that.
I'm going to call each one of these defendants as a witness and
I'm going to show that, I mean I would like to get my daughter
done first, you know. If they want me to put them on the stand
first and --
THE COURT: Well --
MR. KIMBERLIN: -- and show that they've called me a
pedophile and been on the internet, all over the internet every
single day for years --
THE COURT: Well that's up to you. I mean --
MR. KIMBERLIN: But I would rather put her on the
stand --
THE COURT: But I'm concerned about a 15-year old
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child --
MR. KIMBERLIN: She has been through this. She has
lived it.
THE COURT: But I'm saying, what is she going to say
that, I'll just use Mr. Akbar, what is she going to say he did?
MR. KIMBERLIN: She may not say anything that he did
other than that he posted tweets on the internet that I'm a
pedophile.
THE COURT: How can she testify to that?
MR. KIMBERLIN: Well I'm not saying that she's going
to testify. She will testify that she was bullied out of two
schools in Montgomery County --
THE COURT: Because of him?
MR. KIMBERLIN: -- because of these guys.
THE COURT: Because of him?
MR. KIMBERLIN: I'm not saying because of him, but
because of what they said on the internet.
THE COURT: The conspiracy count is gone so you won't
be able to use they.
MR. KIMBERLIN: Then I won't say they. I will say
you know, the defendants that called me a pedophile on the
internet. That this was used and read. But I have to show
that this was publicly put out there --
THE COURT: You do, but I don't know how you're going
to do it through your daughter.
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MR. KIMBERLIN: Well I'm not going to do it through
my daughter. It's just that I'm putting her on the stand
first. I'm going to do it through them. I'm going to show
that they did this --
THE COURT: Well maybe you should call them because
what I'm hearing is I don't know what it is she can, you need
to say there's four defendants left. You need to show what
each one of them did, not they.
MR. KIMBERLIN: All right, but --
THE COURT: You're going to have to connect the
conduct to each individual man.
MR. KIMBERLIN: I understand. I'm just trying to lay
the foundation first and then let her go and --
THE COURT: But you're going to have to do it through
admissible testimony.
MR. KIMBERLIN: Okay, I will.
THE COURT: I mean she can't just get up there and
testify about what was going on in the family or any of that
because first of all, how do you connect that to -- it's like
saying you sat next to somebody that had a cold and you caught
a cold. You can't --
MR. KIMBERLIN: Well --
THE COURT: There's no segue there.
MR. KIMBERLIN: -- because they're the only ones that
were on the internet, I mean not they. These defendants were
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on the internet promoting this false mean, this false narrative
of pedophilia, I mean defamatory.
THE COURT: Well my question still is how does your
testify to that?
MR. KIMBERLIN: Well she testifies of what happened
to her because of this. I have to prove some harm and show
some harm.
THE COURT: What's the segue? How can you prove that
what happened to her is a direct result of -- I'm using this
gentleman because -- how do you prove that?
MR. KIMBERLIN: Well, if she was bullied out of two
schools, if she suffered out of two schools because of --
THE COURT: As a result of?
MR. KIMBERLIN: -- because of people going on the
internet and reading the fact that I'm a pedophile, then that's
harm. That is absolute harm and I need to show that.
THE COURT: Well --
MR. OSTRONIC: Your Honor, I'll also point out that
there's two other defendants in this case which also he's
alleging the same thing against. They're not part of this
whole thing either.
THE COURT: You're going to have to connect the
testimony to a particular defendant, not just broad
generalities.
MR. OSTRONIC: Thank you.
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(Recess)
THE CLERK: Civil 380966, Brett Kimberlin versus
Aaron Walker, et al.
THE COURT: Okay, we're on the record. Have a seat,
please. All right, we're back on the record, Mr. Kimberlin
your first witness.
MR. KIMBERLIN: Yes, I'm going to call Kelsie
Kimberlin.
MR. OSTRONIC: Your Honor, I will object.
THE COURT: Come --
THE COURT: She's not a party in this case.
MR. KIMBERLIN: Kelsie?
THE COURT: Yeah.
MR. KIMBERLIN: Not a party?
THE COURT: What's her testimony? Is that that
little girl?
MR. KIMBERLIN: Not that little girl there, but
another girl. Your Honor --
MR. KIMBERLIN: She's not a party, she's a witness.
THE COURT: To what that they did?
MR. KIMBERLIN: That they harmed me and my family and
she's, you know, I asked you to give me a chance to make
that --
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THE COURT: But she can't testify. Her school and
all that is not relevant in this case.
MR. KIMBERLIN: She can testify that I'm not a
pedophile. She can testify that --
THE COURT: How can -- she can testify that you never
did anything to her.
MR. KIMBERLIN: Or anyone she knows.
THE COURT: Or anyone that she knows.
MR. KIMBERLIN: Or --
MR. OSTRONIC: I will stipulate that he never did
anything to her. We'll stipulate to that.
MR. KIMBERLIN: No, I want the harm. There's harm.
These people need, this jury needs to know the harm this has
caused my family. It's not just --
THE COURT: Wait a minute, hold on a second.
MR. KIMBERLIN: I have a right to put on evidence of
harm.
THE COURT: We're on the same page. No one is
objecting to what the jury has a right to know in terms of
harm. The objection is the manner in which you are setting out
to do that. If these individuals said that you're a pedophile,
the best person to testify about that is you. To put your 15-
year old daughter --
MR. KIMBERLIN: Well, my daughter --
THE COURT: Talk about harm, put a 15-year old kid in
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a courtroom, in front of a jury and ask her questions about
pedophilia --
MR. KIMBERLIN: Your Honor, my daughter has suffered
immensely at this and --
THE COURT: No one's doubting that but you've got to
understand something, you are the party in this case, not your
daughter. She's not a party here.
MR. KIMBERLIN: I understand, but I need to put on, I
need to put this information on and I ask you to let me put
this information on. She was listed as a witness.
THE COURT: The problem is what did she witness?
MR. KIMBERLIN: Well she witnessed the bipolar and
present activity of my wife.
THE COURT: A 15-year old is not competent to testify
about any bipolar --
MR. KIMBERLIN: Well she can testify --
THE COURT: That's subject to an expert witness.
MR. KIMBERLIN: Well she can testify about what she
saw my wife do and how she saw my wife --
THE COURT: And how can she connect that behavior of
your wife to one of these gentlemen, how?
MR. KIMBERLIN: Because --
THE COURT: -- evidentiary wise.
MR. KIMBERLIN: Okay, because these guys they're
whole thing is to --
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THE COURT: I understand them.
MR. KIMBERLIN: -- that my wife, that my wife filed
some document in a court, in this courtroom that made some
allegations that were false. And they are just reporting those
allegations. That's they're --
THE COURT: No one's disputing that, but what can
your daughter witness? What has she witnessed?
MR. KIMBERLIN: She can say that my wife is bipolar
and depressed --
THE COURT: No, she can't.
MR. KIMBERLIN: Well she can say that my wife has
fits of depression.
THE COURT: She can't.
MR. KIMBERLIN: And my wife --
THE COURT: She's not competent to testify to that.
MR. KIMBERLIN: She can testify that my wife tried to
commit suicide in front of her. She can say these kind of
things.
THE COURT: Okay, assume arguendo the little girl
gets up here and say my mom tried to commit suicide. Okay,
what is that, how is that relevant to anything he did?
MR. KIMBERLIN: Okay, because these defendants took
advantage of my wife, followed her out of the courtroom, at
least some of them. Followed her out of the courtroom and got
her to file some bogus charge against me.
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THE COURT: Okay --
MR. KIMBERLIN: It was investigated by everybody and
found to be bogus.
THE COURT: -- assume all of that is true, what does
this 15-year old have to do with that?
MR. KIMBERLIN: Because she was harmed. She's been
harmed. She's been run out of two schools and --
THE COURT: She's not a party.
MR. KIMBERLIN: And they have defamed her. They
have --
MR. KIMBERLIN: I know, but they have gone on her,
she's a very accomplished musician. They have gone on her
websites. They have attacked reporters --
THE COURT: I don't disagree with any of that, but
she is not a party.
MR. KIMBERLIN: It's not that she's a party. They
are using the pedophilia against me, against her and they're
doing it to harm me.
THE COURT: Sir, but you've got to understand
something. We have rules here. You can't just bring people in
to just testify when they A, they didn't witness anything that
they're competent to testify about and B, she is not a party to
this lawsuit. So even if they did harm her as it were --
MR. KIMBERLIN: I have a right to put on the fact
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that I'm a father, that I'm a good father. They have --
THE COURT: You can get up there and put that on.
MR. KIMBERLIN: Well I may not testify, Your Honor.
I don't have to testify.
THE COURT: That's up to you.
MR. KIMBERLIN: You know, but I have a right to --
THE COURT: But see what I'm trying to avoid is
having this little girl come up here, objection sustained,
objection sustained, objection sustained. And then having,
putting her through that and having nothing really come of it.
She can testify to --
MR. KIMBERLIN: Well I can ask her if I'm a good
father. I can ask her if --
MR. OSTRONIC: Your Honor, can you hear my objection
first --
THE COURT: Sure.
MR. OSTRONIC: -- as to why I -- first of all
plaintiff did not have her outside the courtroom during opening
statement when --
THE COURT: She was in the courtroom --
MR. KIMBERLIN: But the exclusionary rule was not
invoked by him before that.
THE COURT: They did yesterday.
MR. OSTRONIC: It was invoked, they did yesterday.
And the second reason, Your Honor, he did not identify her as a
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witness with pertinent information as required by interrogatory
number 1.
MR. KIMBERLIN: Your Honor, interrogatory number 1
which I have right here doesn't even ask for a list of
witnesses.
THE COURT: Well I don't even reach that. I mean I
reach, I don't know what you're going to ask her, but I'm
telling you you're risking putting this little girl, your
daughter on the witness stand and having her testimony not
being admitted. Because what you're telling the Court that
she's going to testify to, she's not competent to testify to
from a legal point of view. A lay witness can't come in here
and I don't care if she was 35 years old, she couldn't come in
here and say somebody suffers from bipolar. She couldnt come
in here and say somebody suffered from depression. She
couldnt come in here and say that my mom did certain things,
therefore it is because of what the defendants did. Even an
adult can't do that.
MR. KIMBERLIN: She certainly has a right to testify
about my character and my character as a father.
THE COURT: Your character isn't at issue.
THE COURT: If your character --
MR. KIMBERLIN: -- my reputation is at issue.
THE COURT: Well, you don't get to put on the
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character evidence first before you take the stand and put your
character at issue, that's just a rule of evidence.
MR. KIMBERLIN: I think that's the whole thing. But
that's the whole thing, they're saying that I have you know,
I'm saying that they damaged my reputation.
THE COURT: See you're locked in on your argument and
you seem to think that the Court is against you. The Court is
not. The Court is just making sure everybody plays by the
rules. If you were allowed to do what you want to do, a
defendant in any case or plaintiff could come in the court and
not testify, not do anything, but just put character evidence
up there. That is expressly prohibited by the rules of
evidence. You have to put your character at issue. That you
testify, then of course --
MR. KIMBERLIN: Let me put her on the stand and I'll
get a very small --
THE COURT: Not if you're going to ask her about your
character as a father. You can do that but right now this jury
hasn't heard a thing from you that's evidence. All that that
both parties did at the beginning, that's not evidence. That's
just opening statement. Now if you put your character at issue
and you want to put on a witness to say he's a good father,
he's this or that, fine. But you don't get to do that first.
That's just the rules of evidence. Otherwise a party could
come into court, just bring in a bunch of character witnesses
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and then rest. That's the reason for that rule. So I'm not
telling you she can't testify. I'm telling you she can't
testify in that order.
MR. KIMBERLIN: All right, well then I'll go tell her
that she's got to wait.
THE COURT: You don't have to tell her anything.
She's waiting and --
MR. KIMBERLIN: Yeah, but I owe it as a father so she
doesn't sit out there and think that she's you know, I just
need to tell it's going to be a while.
THE COURT: Okay.
MR. OSTRONIC: Thank you, Your Honor. Your Honor, is
the objection overruled then for her coming in or can I wait
till later on if she tries to come in later on?
THE COURT: Wait for later.
MR. OSTRONIC: Okay.
MR. KIMBERLIN: I'd like to call Aaron Walker.
THE CLERK: Please raise your right hand.
AARON WALKER
Called as a witness on behalf of the plaintiff, having been
first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. KIMBERLIN:
Q State your name, please.
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A My name is Aaron Justin Walker.
Q And what is your occupation?
A I'm currently unemployed, but I am an attorney.
Q And where were you employed previously?
A Where was I?
Q What was your last previous employment?
A It was a company called Professional Healthcare
Management, Inc.
Q What did you do at that --
A I was corporate counsel.
Q You were corporate counsel. Now did you have a hobby
on the side or have a vocation on the side, publisher of any
kind of blog?
A Yes.
Q Okay, could you tell us the name of that blog?
A I had two.
Q Okay, could you tell us about those?
A Okay, the first is Allergic to Bull.
THE COURT: I'm sorry, allergic to?
THE WITNESS: Bull, like the animal.
THE COURT: Okay.
THE WITNESS: And the second is called Everyone Draw
Mohammed. And I should note to amend that answer that also I
did briefly guest blog on a website called Pattericos
Pontifications.
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BY MR. KIMBERLIN:
Q So as a publisher of the Mohammed blog what name did
you use in that capacity?
A I went under the pseudonym Aaron Worthing.
Q Now do you also have a Twitter account under any
name?
A Yes, Aaron Worthing.
Q So that Mohammed blog and that both use the name
Aaron Worthing. Now are you familiar with a man named Seth
Allen?
A Yes.
Q Okay, in August roughly of 2011 did Seth Allen send
you an e-mail?
A He sent me several.
Q Did he send you a specific e-mail regarding possibly
murdering me?
A Yes.
Q And there were several other people involved with
that e-mail, on that e-mail thread, I'm mean cc'd or bcc'd or
whatever. Do you know, if you have any personal knowledge, did
any of those people contact the police and tell them that
there's a possible murder against me?
A Well it would be hearsay information.
Q Okay.
A But upon information and belief Mandy Nagy did call,
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contact the police. She informed me she was going to do so and
then she informed me after she had done so.
Q And are you familiar that I had a lawsuit against Mr.
Allen --

A Yes.
Q pending -- at that time for defamation?
A Yes.
Q And are you familiar that once a judgment was reached
in that case in November of 2011, did you take any action on
behalf of Mr. Allen?
A Action?
Q Did you get involved with that case in any way, shape
or form?
A I provided him legal advice on how to deal with your
lawsuits.
Q Okay, so I'm not trying to get into attorney-client
privilege, but did you do that using the name Aaron Walker or
Aaron Worthing?
A Both.
Q Okay, now at some point I became aware that somebody
named Aaron Worthing was involved with that lawsuit and was
filing some posts or helping him file some posts --
THE COURT: Sustained, you're leading the witness.
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BY MR. KIMBERLIN:
Q At some point in the, following that judgment did you
attend a hearing on January 9, 2012 in this courthouse?
A Yes.
Q And at that time did you attend that hearing for any
particular reason?
A I needed to put, seal some information on the record.
You had decided to file a motion, you had filed a motion, a
subpoena against me that was abusive. You were trying to get
me to testify against my client. And then when it became
clear, when you learned what my true identity was then you put
the motion to withdraw on the record. That motion to withdraw
included my real name and the alias I went under online. It
included my date of birth, my current home address. It
included where I worked. It included their address. It
included what college I went to. It included what law school I
went to. It included sealed information from a lawsuit I had
filed and included all of this information unnecessarily. And
this was one day after you had sent a letter to the police
saying that your act of placing that information into the
public record would put my life in danger. So, I came to court
to put that information under seal.
Q So you came to court to put it under seal. Now I
know you stated just a second ago that I put your life in
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danger.
THE WITNESS: By your own words.
MR. KIMBERLIN: Or whatever.
BY MR. KIMBERLIN:
Q When you blog on Everyone Draw Mohammed, did you make
any statements about who you were with regard to your name,
where you live, things like that?
A Yes.
Q Can you, did you tell people on that blog something
that, I'll paraphrase it, come get me bitches, I'm Aaron
Worthing from Manassas, Virginia? If you're going to behead
somebody behead me, did you say something like that?
A Yes, I did that specifically so they would chase a
ghost. So that if there was any danger, and I believe there
was none --
Q Okay.
A -- that they would go after nobody.
Q Okay, but these 800 vile depictions of the Prophet
Mohammed --
MR. OSTRONIC: Your Honor, please is this going
anywhere?
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THE COURT: That's a leading question, sir.
MR. KIMBERLIN: Okay, all right.
THE COURT: Don't ask leading questions.
BY MR. KIMBERLIN:
Q Did you ask other people to post these depictions
under their own names?
MR. OSTRONIC: Your Honor, can he be more specific on
this one?
THE COURT: Yes.
BY MR. KIMBERLIN:
Q When you as the publisher of the Everyone Draw
Mohammed blog, did you ask people that were submitting these
depictions to post them under their own name?
A Basically you have to understand what this was about
in context. We had seen a decades old campaign of people, I
call them Islama-fascists who do not believe in freedom of
speech. They threatened, for example, Salman Rushdie for
having (unintelligible), they threatened Salman Rushdie for
having published a book critical of Mohammed. They, someone
killed Theo Van Gogh, I believe the great grandnephew of
Vincent Van Gogh because he made a movie critical of how he saw
Islamic culture treated women. And then we turn on the TV show
South Park was getting death threats if they dared to show
Mohammed in the most benign, the most inoffensive manner
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because according to their religion you absolutely cannot show
Mohammed under any circumstances, at least under some
interpretations.
And so we said look, that's your religion. That's
not my religion. We have a right to do and say what we want.
And so a lot of people in sort of a similar situation to the
movie Spartacus where they all stood up and said I am Spartacus
they went in there and said I want to put myself on the line to
put myself in harm's way in order to give them too many targets
to look at to make it impossible for them to hurt one person
because they would have to hurt a 100,000 people. And so me
and over a 100,000 other people participated in this protest
called the Everyone Draw Mohammed Day Protest. You know, we
had 800 people. But a 100,000 people participated. And as a
result nobody has been killed. The terrorists have realized
there's too many people. They can't kill them all.
And so what I was urging people to do is to make it
clear that they were standing up with the most, you know,
openness as possible. And now, ideally I wanted to put my name
on there too, I really did. But I'm a married man and I have
to make these kinds of decisions together. And my wife, we
discussed this and she was too afraid. There's no two ways
about it. And so I, you know, I said okay, I can't ask other
people. So I told a white lie, if you will. And I've even
apologized to my readers later about that. But the idea was to
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try to get something going to protect freedom of speech.
Q So on this blog post that you put up on that blog you
said and I'll ask you to look at this.
"I will insult your prophet on a regular basis and I
will continue to do so until this sort of thing stops
getting a violent response."
So that's your justification to insult Prophet
Mohammed until --
A Well I'd like to see what you're relying on.
Q Okay.
THE COURT: Can we have that marked, sir?
MR. KIMBERLIN: Yes --
MR. OSTRONIC: Your Honor, can I look at it first?
THE COURT: Sure.
MR. OSTRONIC: You look at it first. And this was
previously submitted in discovery?
MR. KIMBERLIN: Yes.
MR. OSTRONIC: Okay, if he can authenticate it. It's
not authenticated or anything so --
THE COURT: Well we're not there yet.
MR. OSTRONIC: Right.
BY MR. KIMBERLIN:
Q Okay I'm going to hand you Plaintiff's Exhibit Number
1 and the highlighted yellow portion THE COURT: Can
you identify that, sir?
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THE WITNESS: Do I need to say something, I'm sorry?
THE COURT: Can you identify that exhibit?
THE WITNESS: Oh, authenticate it, let me read it
over a second here. I looked at it. I believe it is
authentic, sir.
THE COURT: And it is what?
THE WITNESS: It is a post I wrote introducing two
more authors to the blog who were going to keep it going.
THE COURT: All right.
THE WITNESS: And basically I'm doing my best to try
to suggest to people that rather than hurt these nice people
that they go chase after that ghost, if you will.
BY MR. KIMBERLIN:
Q All right, in another --
A Do I need to hand this to --
THE COURT: No, it hasn't been offered yet.
BY MR. KIMBERLIN:
Q In another post you stated that --
THE COURT: Hold on a second, is this going to be a
question?
MR. KIMBERLIN: Yes.
THE COURT: It can't be leading.
MR. KIMBERLIN: Okay, I'm going to read -- can I read
from it and then --
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BY MR. KIMBERLIN:
Q I'm going to hand you this, what's going to be marked
as Exhibit Number 2 --
(The document referred to was
marked as Plaintiff's Exhibit No.
2 for identification.)
MR. OSTRONIC: Goes to counsel, please. Is this
still part of the Mohammed thing?
MR. KIMBERLIN: Yes.
BY MR. KIMBERLIN:
Q And I ask you to read the yellow portion.
THE COURT: First can he identify it?
BY MR. KIMBERLIN:
Q First can you identify that?
THE COURT: They make it look easy on TV.
THE WITNESS: Well whatever it is it's only a chunk
of something written here.
MR. KIMBERLIN: Right, right.
THE WITNESS: So I dont have the entire context
here.
BY MR. KIMBERLIN:
Q I'm just asking if you can identify that.
A Let's see.
MR. OSTRONIC: Your Honor, I think he just did
identify it. It was a chunk of something out of a larger
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context there.
THE WITNESS: Maybe, yeah.
BY MR. KIMBERLIN:
Q I'm just asking you to read that portion in yellow.
MR. OSTRONIC: But Your Honor, if it's not --
THE COURT: Hold on a second, counsel, just object if
you have an objection.
MR. OSTRONIC: Sorry.
THE COURT: This witness hasn't identified this. He
said it's just a portion of something he's familiar with.
BY MR. KIMBERLIN:
Q Mr. Walker, do you recognize that as part of the
Everyone Draw Mohammed blog?
A It strikes me, it looks, it appears to be part of a
mission statement, but it's only part of it.
Q Okay.
THE COURT: What is this relevant to -- it talks
about Mohammed.
MR. KIMBERLIN: Well, Your Honor, I'm trying to get
to a point.
THE COURT: Okay, you can go directly to it.
THE WITNESS: Well I mean, let me --
THE COURT: Hold on a second. You can go directly to
the point that you're trying to get to.
BY MR. KIMBERLIN:
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Q Mr. Walker is it true that you wanted to insult the
Prophet Mohammed for whatever reason --
THE COURT: I'll sustain that. Prophet Mohammed is
not in this case.
MR. KIMBERLIN: Oh, okay.
BY MR. KIMBERLIN:
Q So were you concerned with your safety and that's why
you used a pseudonym?
A Actually no, it was mostly because it was a marital
decision. I mean there's no way I can place myself in danger
without placing my wife in danger as well typically. Every
danger I face from a terrorist is a danger to both of us. And
therefore it had to be a family decision.
Q So when you came into court after I had identified
you in the Seth Allen case, you wanted to get that information
sealed, right?
A That is correct. I wanted you not to put out my home
address, my work address, where I worked and so forth. And you
yourself acknowledged in the letter you wrote to the police
that you were placing my life in danger needlessly. You didn't
call me as a witness that day. You were dropping your subpoena
and yet you didnt drop your subpoena just by dropping it no.
You had to put information into the record needlessly.
Q All right, okay, so at court that day after the
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hearing --
THE COURT: Well, you're objecting?
MR. OSTRONIC: I'm objecting.
THE COURT: Sustained. What's the relevance of this
to the plaintiff in this case, to you, Mr. Kimberlin? You're
talking about what he did to other people, but you're the
plaintiff.
BY MR. KIMBERLIN:
Q Did, after that hearing did something happen outside
the courtroom?
A Yes.
Q Can you tell the members of the jury what that was?
A Well basically you have to put it in a little context
and so far nobody's explained to this jury who you really are.
MR. KIMBERLIN: Your Honor, I object. I'm asking him
a simple question of what happened outside the courtroom in
this courthouse, outside the courtroom, did something happen.
THE COURT: You can answer that.
THE WITNESS: Well, I'll say in general that you are
a violent --
THE COURT: You'll get to testify later --
THE WITNESS: Sorry --
THE COURT: -- if you choose to do so, sir.
THE WITNESS: Okay, I'll say in general that I know
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that you have an extremely violent history. And that indeed a
man lost his life because of you as a direct result of your
behavior. And that's not just my opinion, that's the opinion
of the Supreme Court of Indiana.
MR. KIMBERLIN: Objection.
THE WITNESS: But that being said --
THE COURT: Go ahead.
THE WITNESS: -- as I left the courtroom you had some
words. You had tried to, again, you said to me Mr. Walker I
recommend that you leave me alone. And I said I am going to
continue to tell the truth about you. And then as we kept
walking I was saying why didn't you call me as a witness today?
If you so needed my testimony why didnt you call me as a
witness. And then at some point you lift your iPad as if to do
something with it, and I split second think, I was concerned.
I knew you were the speedway bomber. And I said I'm not going
to find out what this device is about to do. So I took it from
you, briefly, peacefully, I did not touch your body. I did not
touch you with it. I did no harm to you. I simply removed the
iPad from your hands and I think I took you by surprise so much
that it just came out like it was barely gripped at all. And I
kept it away from you until the courthouse security could come
up there and straighten the whole situation out. You have,
anyway I won't go further than that.
BY MR. KIMBERLIN:
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Q So you took the iPad and have you testified in other
proceedings that you thought this iPad it was brought into this
courthouse was a bomb?
A It was one of the possibilities. I, again it was a
split second decision. I had to decide quickly do I trust
Brett Kimberlin not to be violent with me?
Q So the deputies came up and retrieved the iPad from
you and gave it back to me. Do you know if they made a report
of that incident?
A I believe they did.
Q Have you seen a report on that incident?
A Yes, I've read a report.
Q Okay.
MR. KIMBERLIN: Your Honor, may I --
MR. OSTRONIC: Your Honor, I'm going to object. It's
not the complete report. It's just part of the report.
BY MR. KIMBERLIN:
Q So,
THE COURT: Yes --
MR. OSTRONIC: -- objection on -- it's not a
complete --
THE COURT: Well he hasnt offered it.
MR. OSTRONIC: Okay, sorry.
BY MR. KIMBERLIN:
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Q This is a public document from the police department.
THE COURT: Can he identify it? If he can't --
BY MR. KIMBERLIN:
Q Have you seen that report?
A I dont recognize it.
Q All right, so did you ever learn that I went to the
hospital after that?
A I've heard you claim you went to the hospital.
Q Have you ever seen the medical reports that have been
submitted --
A Yes, and in fact, they have not been consistent.
MR. OSTRONIC: I'm going to object to it also --
THE COURT: Well, it's not been offered.
MR. OSTRONIC: Okay --
BY MR. KIMBERLIN:
Q Sir, have you seen these before --
THE COURT: What's the number of that exhibit, sir?
MR. KIMBERLIN: Exhibit 4 and 5. THE WITNESS:
I do not recognize it. No, I don't believe, I honestly don't
recognize it. I mean I have seen several things and the
problem is that I have seen inconsistent reports that you
purported to be from the hospital.
BY MR. KIMBERLIN:
Q So have you testified --
MR. OSTRONIC: Your Honor, also you've got exhibits
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in --
THE COURT: Well yes, the clerk will take the
exhibits.
MR. OSTRONIC: Okay, but my point is that the medical
records are they entered or not entered?
THE COURT: They weren't offered.
MR. OSTRONIC: Okay, all right.
BY MR. KIMBERLIN:
Q So have you made statements on your blog, on Twitter
or in other context that I forged those medical records?
A I said that I did not do any harm to you. So
necessarily those, any records that exist do not accurately
reflect what happened. You, for example, have presented in
this case in discovery a set of medical records that claim that
you did not have any back injury. You complained of pain but
no back injury. On February 8th, 2012, you submitted records
to the court in a hearing --
MR. KIMBERLIN: Your Honor, I object. I'm asking him
a simple question has he stated that I forged these medical
records, any medical records with regard to that incident?
THE WITNESS: I have stated that --
THE COURT: You can answer that.
THE WITNESS: What I was about to say is on February
8th, 2012, you submitted in a peace order hearing against me a
set of medical records that claimed you had a cracked
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vertebrae, very specifically. I even referred to it in
subsequent documents. He claimed I cracked his vertebrae. And
suddenly you produce these new documents that don't mention a
cracked vertebrae. You have a history of forging documents,
Mr. Kimberlin.
MR. KIMBERLIN: Your Honor, I object.
MR. KIMBERLIN: I object.
THE COURT: Next question.
BY MR. KIMBERLIN:
Q Did you say that, did you ever say on your blog or
elsewhere that I probably had myself beat up so that I could
frame you for a crime?
A I simply pointed out that since I didn't beat you up
if you actually had injuries there's only way you could have
gotten it.
Q And --
A And I also most often said you probably just faked
the whole incident.
Q Again, and have you seen the photographs from the
courthouse security on that day?
A I've seen the video and motion showing that I did
none of what you said.
Q Okay, so I'm going to, I'm going to hand you exhibit,
ask you to explain those to the jury, please?
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THE COURT: Well first can he identify the exhibit.
BY MR. KIMBERLIN:
Q Yes, can you identify it?
A It appears to be a few selected stills from full
motion by connect video that was given to both of us in
discovery. Given to you weirdly before they gave it to me, the
defendant. And yeah, it appears to be the moment where I took
the iPad from you.
Q Okay, can you look at the next picture?
A This would be when the sheriff's deputies were
talking to me about the incident.
Q Okay, and the next one?
A This would be when you were trying to retrieve the
iPad from me and I'm holding it over my head.
Q Now once that occurred, you were, at that time you
were working at your job as legal counsel for the healthcare
provider. And I believe on I'm not sure, but it looks like
January 9th, roughly, you wrote a letter to your boss, your
employer about this incident and about your --
THE COURT: Sustained. If you have to ask your
question, sir. You can't lead the witness.
MR. OSTRONIC: Your Honor, what is he trying to
enter, he's got more than one document in there. It's not all
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the same document. I don't know what he's trying to enter.
THE WITNESS: It's sealed.
THE COURT: Is that Exhibit Number 7?
MR. KIMBERLIN: Yes, it is, Your Honor. This is --
THE COURT: Well the witness has to identify the
document. The witness can't identify before you go any
further.
BY MR. KIMBERLIN:
Q Can you identify the subsequent e-mails that are
attached to this, please?
A Yes, this would be a sealed document that I turned
over in the Virginia case to you.
THE COURT: What's it relevant to, something in
Virginia?
MR. KIMBERLIN: No --
THE COURT: Well, you're not offering it, are you?
MR. KIMBERLIN: I'm not offering at this time. I'm
using it to refresh his memory.
THE COURT: Well he didn't say he had any memory to
refresh.
BY MR. KIMBERLIN:
Q Did you write a letter to your supervisors including
the HR?
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A I've written lots of letters to them, be more
specific.
Q This particular letter?
A Am I being asked to identify --
Q Yes --
A -- the contents of this letter?
Q Right.
A I wrote an e-mail to this effect.
Q Okay --
A It may be slightly different from what I finally sent
them.
Q Uh-huh.
A My practice is to write an e-mail usually in Word and
then transfer it over and I might have edited it since then.
Q Okay, following your letter to your employer were you
terminated from the employment?
A Following that and several other incidents, yes.
Q What day were you terminated?
A I was, well the termination was effectively on the
9th, sorry, yeah, January 9th. But what had happened was they
had told me initially it was going to be a suspension and they
said we're going to suspend you until this Kimberlin situation
is resolved. And I said what the hell does that mean? How is
it going to be resolved?
Q So --
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A And so then later in the week they decided that it
was going to be a permanent termination and effectively
backdated the date of termination to the 9th.
Q So did they tell you in any e-mail why you were
terminated?
A Did --
BY MR. KIMBERLIN:
Q Were you terminated because of your blogging against
Prophet Mohammed?
BY MR. KIMBERLIN:
Q Did you later tell people that you were terminated
because of me?
A Yes.
Q And when you told people that you were terminated
because of me did you tell them that the attorney for your
employer had actually written no reasons for your termination?
A He wrote what he purported to be the reasons. I do
not believe they were the real reasons.
Q And did that attorney for your employer ask you to
perform any act after you were terminated?
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BY MR. KIMBERLIN:
Q Now so did you blame me for your termination?
A I believe --
THE WITNESS: Sorry.
THE COURT: It's been asked and answered.
BY MR. KIMBERLIN:
Q And have you gotten another job in the last two and a
half years?
A No, I have not because of your --
THE COURT: Withdrawn? Let him finish answering --
THE WITNESS: Because of your continued harassment of
myself and my wife.
BY MR. KIMBERLIN:
Q So what happened to the Everyone Draw Mohammed blog
after your termination?
BY MR. KIMBERLIN:
Q Were you ever, were you ever banned from Facebook
because of your attacks --
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BY MR. KIMBERLIN:
Q -- on Prophet Mohammed?
BY MR. KIMBERLIN:
Q How many depictions did you end up putting on --
THE COURT: Well finish the question.
BY MR. KIMBERLIN:
Q How many depictions of the Prophet Mohammed did you
end up putting on that while it was still live?
A Oh --
THE WITNESS: I'm sorry.
BY MR. KIMBERLIN:
Q Did you ever call the Prophet Mohammed a pedophile?
BY MR. KIMBERLIN:
Q Now you had a blog called Allergic to Bull.
A Yeah.
Q And in the past three years how many blog posts,
roughly, I'm not pinning you down to an exact figure, how many
blog posts have you made about me?
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THE COURT: Overruled, you can answer.
THE WITNESS: Maybe 100, I'm not sure.
BY MR. KIMBERLIN:
Q Okay, you have a Twitter account, right?
A Uh-huh.
Q Under the name Aaron Worthing?
A Yes.
Q How many approximately tweets have you made about me
in the past 2 1/2 years?
A I honestly don't know.
Q Would it be more than a 1,000?
A Probably.
Q Would it be more than 5,000?
A I don't know.
Q But it could be 5,000? Now --
A I should probably say on the record I made kind of I
don't know kind of gesture, sorry.
Q You mentioned a minute ago that I've asked you to
leave me alone many times. Can you tell me how many times I've
asked you to leave me alone?
A You technically only asked me once.
Q Have I asked your attorney?
BY MR. KIMBERLIN:
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Q But you haven't left me alone.
A I have never accosted you. I have never been in your
presence except when I'm forced to come to court with you. I
have left you alone you. I've never come to your house. I've
never called your house. I've never sent you an actual e-mail.
What I have done is I write about you to the world-at-large,
just like Woodward and Bernstein did about Richard Nixon.
Q Right.
A Did Richard Nixon have a right to say to them leave
me alone, stop writing about me?
Q Have you ever called me a murderer?
A No, I have not.
Q Have you ever called me a pedophile?
A I have said that I believe based on the evidence that
you are.
Q Have you published blog posts that call me a
pedophile?
A Yes.
Q Have you published tweets that call me a pedophile?
A Again, based on the information I have I have called
you a pedophile.
Q How many blog posts do you think you have published
that say that I'm a pedophile?
A I don't know.
Q One?
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A Maybe six, I dont know.
Q How many tweets do you think you published said I'm a
pedophile?
A Maybe 30.
Q How many?
A Maybe 30.
Q Three?
A 30.
Q Okay, now in the thousands of tweets that you've made
about me, are there positive tweets or are they all negative?
A All the tweets about you are they positive or
negative? I can't think of the last time I said something that
would tend to put you in a good light.
Q Now are you aware that I'm a director of a non-
profit?
A I've heard you say that which seems true.
Q And have you targeted my non-profit in any way, shape
or form or --
A Targeted how?
Q Attacked --
BY MR. KIMBERLIN:
Q Attacked --
THE COURT: Overruled.
BY MR. KIMBERLIN:
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Q Attacked my non-profit?
A Attacked how?
Q Defamed, demeaned, to try to ruin, destroy?
A I don't believe I said anything overall negative
about your non-profit itself.
Q Okay, well I'm going to hand you Plaintiff's Exhibit
8 --
A It appears to be a blog posted about you, okay.
Q Now what's the title of that blog post?
A Brett Kimberlin is a pedophile.
Q Brett Kimberlin is a pedophile. Now when you put the
name of somebody in a blog post, what does Google do to bring
that name, how does that affect Google when somebody Googles
that name?
A I am not an expert on search engine work, how it
works.
Q Of course optimization. But in your opinion in what
you know --
BY MR. KIMBERLIN:
Q Hand you Plaintiff's Exhibit No. 9.
MR. OSTRONIC: Sorry, what exhibit was that?
MR. KIMBERLIN: 9.
THE COURT: 9.
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THE WITNESS: This is only part of something I've
written.
BY MR. KIMBERLIN:
Q And could you tell the jury what the title of that
is?
A The Pedophile Brett Kimberlin's "Brass Knuckle
Romance" end quotes.
MR. OSTRONIC: Your Honor, is he offering it?
THE COURT: I don't know.
MR. KIMBERLIN: I may in a minute.
MR. OSTRONIC: I don't know if -- he hasn't
authenticated it yet. He's offering it --
THE COURT: Well he hasn't offered it. I don't rule
unless it's offered.
MR. OSTRONIC: Then he should be reading off it.
THE WITNESS: Okay, my apologies.
THE COURT: Well he asked him to identify what it is
and he said that it's a caption Brett Kimberlin is a --
MR. OSTRONIC: But that's part of what he's trying to
get in, part of the offering.
BY MR. KIMBERLIN:
Q Now --
MR. KIMBERLIN: Excuse me?
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BY MR. KIMBERLIN:
Q You filed a lot of legal filings against me, have you
not?
THE COURT: Filed a, of what?
MR. KIMBERLIN: Lawsuits, peace orders, criminal
charges --
THE COURT: Did he file a lot of lawsuits?
MR. KIMBERLIN: Uh-huh.
THE COURT: That's it?
MR. KIMBERLIN: I'm asking him did he file any
lawsuits, criminal charges or peace orders against me.
THE COURT: Oh, against you.
THE WITNESS: Okay, yeah, I would say I have taken
you to court over the loss of my job and various other people
as well. I have also taken you to court over when you obtained
an unconstitutional peace order against me that forbade me from
speaking about you for six months, not even to say Brett
Kimberlin is a wonderful guy. I was not allowed to speak about
you at all. After the judge disregarded controlling Supreme
Court precedent by name and so I sought relief in Maryland
District Court from that ruling. And I have filed a couple of
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papers in response to the many, many filings you have made
against me.
BY MR. KIMBERLIN:
Q Have you ever filed a multimillion dollar lawsuit in
Manassas, Virginia Circuit Court against me?
A As memory serves I believe it was a $1,000,000
lawsuit, but I had many causes of action for seeking it.
Q So total $66,000,000 roughly?
A No, total $1,000,000 asked for multiple different
ways.
Q What was the result of that lawsuit?
A It was dismissed.
Q Dismissed, do you know, do you remember what Judge
Potter said about that case?
BY MR. KIMBERLIN:
Q Did you file another case in federal district court
against me?
A I just said I did.
Q Okay, and what was the result of that case?
A Well much of it was mooted when Judge Rupp stayed
your unconstitutional peace order --
Q I'm talking about federal court.
A I understand, but what happened in the state courts
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affected the federal court decision.
Q What was the decision in the federal court?
A So what was remaining got after it was mooted, after
I got the relief I needed in state court on appeal, then the
federal court ended up being dismissed.
Q And the criminal charges that you filed against me
for whatever, without going through each individual one, what
were the results of all those?
A They were null --
MR. OSTRONIC: Objection, I'm going to object, Your
Honor.
BY MR. KIMBERLIN:
Q And the peace orders that you filed against me, what
were the results of those other than the one that you just
mentioned?
A The what --
Q Peace orders?
A I filed a peace order against you after you had
stalked my wife in the parking lot outside of the Howard County
District Courthouse. You took photographs of her --
Q I'm asking --
A -- and placed it on the internet.
Q I'm asking you what the result of that was.
A And I sought a peace --
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Q What was the result of that?
A It was not granted.
Q Now on your blog on every post do you have a donate
button?
A Not on every post.
Q Well on the front of your blog you have a donate
button asking people for money?
A I believe there is currently one asking for money for
other people.
Q And the other people are a website called what?
A Well presently it is the National Bloggers Club. At
one point there is also a thing called the Bloggers Defense
Team, a legal defense fund as I was dealing with the vexatious
peace orders, criminal charges, et cetera, that you had filed
against me.
Q Now do you know how much money those various entities
have raised?
A No idea.
Q But it would safe to say it was more than a $1,000,
right?
BY MR. KIMBERLIN:
Q Now on Twitter, let's talk about Twitter for a
second.
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MR. KIMBERLIN: And I'm assuming the jury might know
what Twitter is.
BY MR. KIMBERLIN:
Q But would you just explain briefly what Twitter is?
A Twitter is what they often call a micro blogging
platform. It is where you put out minute, very short messages.
It cannot be more than 140 characters. And it's a way of just
brief messages to the world. Sometimes you argue with people
on topics. Sometimes you just say something like oh, rest in
peace, Robin Williams or something like that. You know, and
sometimes, my particular case I often use it to promote blog
posts I've written.
Q So you use Twitter to get more traffic to your
website?
A Well it's a way people keep track of what people are
writing.
Q Uh-huh, and on Twitter you mentioned that you read a
lot of tweets about me. Are you familiar with name that is
used on the internet called Pedo Bear?
A Yeah, I've heard of it.
Q You've heard of it. Okay, can you tell the jury what
a Pedo Bear is?
A. It's a darkly comic cartoon character. It's used by,
it's hard to explain what, it's just they use it to depict
something as a pedophile such as you know, I can't even think
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of a good example. But it is the character is supposed to be
this evil pedophile and it's fairly dark humor to be blunt.
Q So have you ever used that graphic on your to tweet
or on your blog?
A Yes.
Q Okay have you ever superimposed my photograph onto
that?
A No.
Q You haven't?
A I have not superimposed your photograph on it.
Q Have you ever published a graphic of a Pedo bear with
my face superimposed on it?
A Yes.
Q Okay, how many times do you think, just roughly,
you've done this?
A I don't know, maybe more than a dozen.
Q And have you ever taken a tweet or a blog post and
posted more than one of those graphics?
A Done more than one in one post?
Q Uh-huh.
A No not typically.
Q Okay, I'm going to, I think I'm going to lump these
together. I'm going to hand you what's, let see Plaintiff's
Exhibit 10.
A Uh-huh.
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Q See if you can identify those.
A You mean authenticate them?
Q Authenticate them, identify them.
A Which part of this?
Q Is that something that came off of your Twitter
account or blog or either one?
A What like --
Q Did you publish those?
A I mean I have tweets from what appears to be from
other people --
Q But the last tweet, on that first page, the last
tweet is that your tweet?
A It appears to be so.
Q And that Pedo bear with my photograph on it --
MR. OSTRONIC: Your Honor, can I quickly ask is he
offering this now?
THE COURT: I haven't heard him say I offer this --
MR. KIMBERLIN: I'm going to offer these into
evidence, Your Honor.
THE COURT: The witness doesn't get to testify about
it until it's offered into evidence.
MR. KIMBERLIN: Okay, then I'm going to offer it into
evidence.
MR. OSTRONIC: I'm going to object.
THE WITNESS: But we haven't looked at the rest of
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this.
THE COURT: Based on what?
MR. OSTRONIC: Based on the fact a lot of it --
THE COURT: Let me see them?
THE WITNESS: You want this, I'm sorry.
MR. OSTRONIC: Your Honor, this was offered on August
30th of 2013. Therefore anything that he submits as evidence
for this should be part of complaint unless he's alluded to any
of these things in --
THE COURT: Should be before that.
MR. OSTRONIC: Right.
MR. KIMBERLIN: Your Honor, Your Honor, this thing
has gone on and there was as second amended complaint filed in
the spring of this year.
THE COURT: But it doesn't include this, the dates on
this. When were these dated?
THE WITNESS: I don't see a clear date. I could look
at it and see if I can figure it out.
MR. OSTRONIC: Right on the bottom there.
THE WITNESS: Maybe.
MR. OSTRONIC: But a lot of them came afterwards,
Your Honor and --
THE COURT: This is August of 2013.
MR. KIMBERLIN: That's fine.
MR. OSTRONIC: But not all of them are that way.
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THE COURT: Just make sure that, first of all why do
you need so many of these? So many are the same.
MR. KIMBERLIN: Okay, well I can limit it to --
THE COURT: July 2013 --
MR. OSTRONIC: That's fine. There are some in there
from September that I saw.
THE COURT: September of what year?
MR. OSTRONIC: 2013.
MR. KIMBERLIN: Well that covered it the, amended
complaint.
THE COURT: Well you can take those out. But these
are offered as a packet?
MR. KIMBERLIN: Well like you said --
THE COURT: Well we can take them out later before
they're submitted to the jury.
MR. OSTRONIC: Yes, Your Honor, that's fine.
MR. KIMBERLIN: And I have questions --
THE WITNESS: Whatever works for you.
BY MR. KIMBERLIN:
Q So you published depictions of me in the Pedo bear
graphic on multiple occasions, am I correct?
A Well since multiple means more than two, easily.
Q. Okay, may I look at these? Now when you publish
these you put some kind of tweet with it, right?
A Yeah.
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Q Can you read this one to the jury?
A I will warn you there is a typo in the middle and
again it's my dark sense of humor. But I wrote --
MR. OSTRONIC: Is this one part of the package you
offered?
MR. KIMBERLIN: Yes, but I'm not going to get into
anything that's outside of the --
THE WITNESS: Okay, that was so funny, Brett
Kimberlin accidentally pulled out of his preteen girl laughing.
BY MR. KIMBERLIN:
Q Okay, now could you read that one?
THE COURT: Are you offering them into evidence?
MR. KIMBERLIN: Yes.
THE COURT: Well they don't need to be read.
MR. KIMBERLIN: Well I --
THE COURT: The jury will see them.
BY MR. KIMBERLIN:
Q I want to show you that one there. Is that more than
one of the graphics of the --
A What is that?
Q That's part of this.
A What is it?
Q I'm asking you to identify this. Is that something
off of Aaron Worthing --
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A As far as I can tell, it looks like somebody has cut
and pasted this image over and over again. I'm not sure how
that got created.
Q And you don't know that you did that, right?
A I did not create a graphic like that, no. Do you
want me to look at this?
Q Well I'm just trying to make sure that we don't put
anything filed after --
A Well this one is not even by me.
Q Okay.
MR. KIMBERLIN: Apologize for the delay here.
BY MR. KIMBERLIN:
Q So it's safe to say you tweeted the Pedo bear with my
picture in it and posted it on your website on numerous
occasions, is that fair to say?
A Since it would be more than three, sure.
Q Uh-huh. Now you know the other defendants, Mr. Ali,
Mr. Hoge, Mr. McCain, am I correct?
A Every single one of them are kind gentlemen who came
to my aid after they learned about how you were treating me.
They are my friends.
Q And the way this internet works is you publish
something, you send the link to them, they link back, you send
a tweet. You put Mr. McCain's Twitter account --
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MR. KIMBERLIN: I'm asking, I'm asking.
THE COURT: This is a question?
BY MR. KIMBERLIN:
Q Is this the way -- how does the internet work if you
want to spread something virally through the internet? I mean
or to your friends?
BY MR. KIMBERLIN:
Q Can you tell me, do you ever tweet to Mr. McCain or
provide a link to Mr. Hoge's blog or put a link to Mr. McCain's
blog or Twitter account, I mean is there some way that you guys
communicate?
THE COURT: What is the question?
MR. KIMBERLIN: I'm trying to ask him when he
publishes an image or a tweet like this how he gets that to co-
defendants here.
THE WITNESS: Well it's on my blog. I tweet it out,
they follow my Twitter. They see everything I write as do many
people.
MR. KIMBERLIN: Uh-huh.
THE WITNESS: Who are not being sued, by the way.
BY MR. KIMBERLIN:
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Q So if you want to send something like to Mr. McCain
so he sees it on his Twitter account you would put @ RSMCCAIN?
A If I want him to see a message in his mentions that
is one way to do it.
Q And the same goes for Mr. Hoge or Mr. Akbar, right?
A Yes, I know the kinds of things they're interested in
seeing.
Q And do you ever when you post a post, a blog post
about me being a pedophile, do you ever put a link or send a
link to that post to any of the other co-defendants?
A Yes, just like lots of people in the office to say
this is interesting, why don't you look at it.
Q Okay, now when you call me a pedophile repeatedly --
A Uh-huh.
Q You must have some basis for that. Tell me what you
tell the jury why you know, why you think that's true? And
where is the truth, where is the evidence?
A Okay, well it's a number of different things. First
of all I read Mark Singer's book on Citizen K, the
authorized --
MR. KIMBERLIN: Your Honor, first of all --
THE COURT: It's your question.
MR. KIMBERLIN: I understand.
THE COURT: You asked the question.
MR. KIMBERLIN: I understand.
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BY MR. KIMBERLIN:
Q Go ahead.
A And in that book it discusses how you had a very
questionable relationship with a young girl. He identifies her
as Jessica Barton. Her real name I have since learned is Debra
Barton or Debbie. She was 10 years old when you came into her
life according to Singer. And it also, by the way, this is
backed up by Indianapolis Star newspaper articles I've also
read. She was 10 years old when she came into your life. She
was 14 years old when you left it, I think I understand when
you were arrested for the series of bombings you committed and
you were convicted of.
We do not have direct evidence of any sexual contact
with this girl according to Mark Singer and again the
Indianapolis Star but there were suspicious circumstances. You
were taking long trips, just you and her, this young girl. You
were going around allegedly calling her your girlfriend. You,
and similar kinds of very, you know, behavior that should alarm
any parent. That's one piece of evidence.
Later on in the same book they talk about an incident
where you actually at the moment they were trying to figure out
where you were at the moment a woman named Julia Scyphers had
been murdered. And it was suspected all along that you were
the, that you may have put a contract on her. Now Julia --
MR. KIMBERLIN: I object. I mean --
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THE WITNESS: That's what the book says.
THE COURT: Well I sustain the objection because that
has nothing to do with, at this point --
THE WITNESS: Okay.
THE COURT: -- it doesn't sound like that's going to
pedophile.
THE WITNESS: Well let me jump closer to it.
THE COURT: That's a different segue.
THE WITNESS: Yeah, yeah, there is no segue. So the
question was where were you at that time and the answer you
eventually gave Mr. Singer, according to Mr. Singer was that
you were delivering tee shirts to two young woman. One was the
daughter of a friend of yours and another was just identified
as the friend of this daughter and she was 15 years old and you
had said to Singer that you had kind of a romance with her.
I also have since learned that you also gave an
interview, again, this is according to the sources I've read in
a magazine called the Loston City Paper. And in that interview
there was actually an album review of an album you made called
I believe something like, something to the effect of Out Of
Hell. But it was by a band you're in called Poxy (phonetic
sp.). You were credited with writing the lyrics of these
songs. One was called Teen Dream and another one was called
Waiting to Meet. And both of these sings were about adults
having sex with teenagers. And you gave a quote in an
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interview for this music review where I won't repeat the
explicative, but you talk about how yes, it's about having sex
and where this is where you used the explicative a teenager,
okay. And then you go on to say this is something all men want
to do but they won't actually act on it or something to that
effect. And we have the actual articles with us.
In addition to that, I became aware in I believe it
was July of 2013 that you had filed a peace order against a guy
named Jay Elliott and that your wife Tetyana Kimberlin had
sought a protective order against you. And that you had also,
Mr. Elliott had sought a peace order against you as well. And
you have a habit every time something bad happens to you, you
blame me. So I wanted to find out what you were going to say
about me that day. So I went to attend that hearing and I
witnessed her coming into court and saying she needs protection
from you. And Mr. Elliott saying he needs protection from you.
And then I saw at the end of the hearing your wife put in
handcuffs. And I didn't know what had happened.
So I was attending that hearing with Mr. Hoge, you
can see in the bow tie over there. And we went immediately
downstairs to where they keep the records and were trying to
find out what were the supposed charges. We thought, we
assumed there was a criminal charge because you had a past
history of filing false criminal charges against people. And
you know, we couldnt find out anything. And so overtime Mr.
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Hoge by some means got to know Mrs. Kimberlin.
And we found out, she told us a story. Now at some
point I became --
MR. KIMBERLIN: I'm going to object to whatever she
told them.
THE WITNESS: Well, I'm trying to explain why I
believe this about him.
THE COURT: Well but you still can't testify to what
she told you.
THE WITNESS: Okay, well --
THE COURT: Has he answered your question?
THE WITNESS: I have not finished answering.
THE COURT: But it's your question, has he answered
it?
MR. KIMBERLIN: I'm letting him tell the jury why he
calls me a pedophile. I want him to say it.
THE COURT: Well the point is has he answered the
question? Otherwise if he hasn't, asked another question. We
can't just have these narrative episodes.
MR. KIMBERLIN: Okay, all right.
BY MR. KIMBERLIN:
Q So this book that you're relying on about me that you
say is authorized, did that book say that I was ever arrested
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for pedophilia, charged with pedophilia, charged with any
sexual offense of anybody?
A No and incidentally it's the District Court of
Maryland that says it was an authorized biography.
Q The District Court of Maryland?
A Yes in the parole revocation hearing they said
specifically it was authorized.
Q Please, first of all, was I ever charged with sexual
abuse of anybody at any time in Indiana when this supposed
incident that you're telling the people about occurred?
A To the best of my knowledge you were never charged in
Indiana.
Q Okay, and you don't know whether or not the young
girl testified at the Grand Jury in my case?
A I dont know.
Q That there was never any sexual contact between us?
A That is what you say and I dont take what you say
with much credence, Mr. Kimberlin.
Q And so you don't know that the girl's mother asked me
to take the young girl on a vacation or two vacations because
she had lost her father?
A I dont see why that justifies sending a child to lay
with a strange man.
Q Strange?
A You are legally a stranger to this child.
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Q Well I don't think so. But anyway and the other
incident about giving tee shirts to 15-year old girls, does
that show that I'm a pedophile?
A Well I do not think it is normal to romance a 15-year
old girl.
Q To romance by giving her a tee shirt when she's the
daughter of one of my best friends.
THE WITNESS: Actually I believe it was, sorry,
sorry.
MR. KIMBERLIN: A tee shirt turns into pedophilia.
THE COURT: Is that a question?
BY MR. KIMBERLIN:
Q My wife, when you went into court and you saw her
taken into custody, did you write that I had her arrested?
A I understood you to be the cause of her arrest.
Q Do you know the difference between an arrest and a
mental commitment?
A Actually constitutionally speaking there is no
difference. Both are a seizure under the 14th, sorry under the
Fourth Amendment.
Q So --
THE COURT: Don't forget to mark it.
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BY MR. KIMBERLIN:
Q I'm going to hand you Plaintiff's Exhibit Number 11.
A Okay.
Q And could you read the title of that?
A Let me identify it first.
THE COURT: Can you identify what it is.
BY MR. KIMBERLIN:
Q. Identify it first, please.
A Okay, the title is Breaking, Kimberlin Attempted
Failed to Have his Wife Involuntarily committed.
Q Involuntarily committed.
A Yes.
Q But later on you changed that to arrested.
BY MR. KIMBERLIN:
Q Now at that hearing, you attended that hearing. Did
you hear the judge ask my wife if there had been any type of
sexual abuse at all in our marriage or to our kids or anything
did you hear that?
BY MR. KIMBERLIN:
Q So you had contact with my wife after that, a couple
days, week --
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A She sought my legal help.
Q She sought your legal help. And after she sought
your legal help did you help her prepare a document?
A I'm going to have to object myself because there is
an attorney-client privilege that applies to this situation.
THE COURT: Well I know lawyers are tough witnesses,
but they don't get to make objections when you're a witness.
Sustain that.
MR. OSTRONIC: I object.
THE COURT: That would be lawyer-client privilege.
BY MR. KIMBERLIN:
Q You're a Virginia lawyer.
A Uh-huh.
Q Under Virginia law did you enter into as required by
Virginia law a retainer agreement with my wife?
A Virginia law does not require a formal written
agreement. It just requires a typical oral contract. If I say
to you I'll buy that pencil for a $1 and you hand it to me
that's an agreement.
Q So once you and Mr. Hoge and maybe Mr. Akbar and
McCain got to my wife --
BY MR. KIMBERLIN:
Q Contacted my wife --
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BY MR. KIMBERLIN:
Q What happened after you met with my wife?
A In what respect?
Q Did she file any document in court?
A One, she filed criminal charges against you for
sexual offense in the third degree. I can go into more detail
about that if you'd like. She also filed a motion to continue.
You had filed a protective order against her claiming that she
was on behalf of your children claiming that she would harm
them. She believed the greater damage for harm is you Mr.
Kimberlin because she had told me, and I'm basing this on and
what's in the document as well, that you had seduced her when
she was 14 years old in Ukraine. She told me that you made
numerous trips back and forth from the United States to
Ukraine, I don't know how many. She said that when she was 15
you brought her over to the United States and then proceeded to
violate that statute around 50 times. I mean basically it's a
statutory rape statute as you folks might understand.
Q So --
A I'm not done. And on top of that at the same time
she said she had another cousin there named Tetyana something.
It's one of those Russian Ukrainian names has many, many
consonants and vowels I have trouble remembering.
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THE COURT: Be careful saying that. Question
Ukrainian is a hot topic.
THE WITNESS: Yes, yes, and basically her name, her
first name was Tetyana as well and it's spelled by the way for
stenographer who might ever record this T-T-Y-A-N-A, I believe.
And what Tetyana Kimberlin witnessed was she walks in and you
are kissing this 12-year old cousin.
BY MR. KIMBERLIN:
Q So that's all in the stuff that you put in this
pleading, right?
A Again, how the pleading got formed --
Q This charge, this criminal charge against me.
A How the pleading got formed is a matter of privilege,
sir.
Q Now --
THE COURT: Excuse me, this might be a good point to
stop. Lunch is at 12:30. I'm going to send the jury to lunch.
Unfortunately there's no dry place I think that you're going to
be able to eat, so you're going to have to go outside, even if
you're going to go into the cafeteria next door. Please be
back on the floor at 1:30. Please leave your pads on your
seats and don't discuss this case among yourselves.
THE COURT: Can I ask? There's several documents
that I've authenticated --
THE CLERK: The clerk will get those, make sure
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everything that's marked is given to the clerk, even if it's
not admitted into evidence, it stays as part of the record.
THE WITNESS: All right, I think none of this has
been, I think. Okay, should I give it to you?
THE COURT: Yes.
THE WITNESS: This is not something I'm very familiar
with, I apologize, Your Honor. I've done 10 years of law, but
not many trials.
(The jury left the courtroom.)
THE COURT: For the record the jury is out of the
room. Have a seat, please. Now, gentlemen, first of all I
need the defendants at counsel table. It's too confusing for
the jury. You see them searching to find the various
individuals. We'll put chairs up there for you so that you can
be there. The other thing is this jury is told this case is
going to finish today, so keep that in mind.
MR. KIMBERLIN: Yeah, I'm going to move it along.
THE COURT: Yes, this sort of pedantic approach.
MR. KIMBERLIN: I know.
THE COURT: You need to move it along, just get to
whatever it is you -- I'm going to respond to that gentleman in
a minute -- whatever you allege that these gentlemen actually
did. Yes, sir what was his concern? What's his concern?
MR. OSTRONIC: His concern is he has something in
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Federal Court on the 14th.
THE COURT: Oh yes, we have to finish this. You have
to understand something. You know, you don't want to anger
this jury. I mean they're told and some of them have problems
tomorrow as well, some of the members of the jury, so we've got
to move this along.
Now, will you have questions of the gentleman that's
on the stand?
MR. OSTRONIC: Yes, sir, about 10.
THE COURT: Okay, so everybody needs to keep that in
mind.
MR. OSTRONIC: Yes, Your Honor.
THE COURT: This thing has to move.
MR. OSTRONIC: Yes, Your Honor.
THE COURT: Now what I would encourage you to do, is
there are more exhibits that you intend to use, if you could
get back at about 1:20 or something like that, look at those
exhibits beforehand so that we don't have the delays. I mean
you have to have a brief delay, so that we can move a little
faster when we come back. And at the end of the day we still
have to do jury instructions and closing argument before we can
get this case to the jury if it goes to the jury. All right,
thank you.
THE CLERK: All rise. Court stands in recess.
(Recess)
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A F T E R N O O N S E S S I O N
THE COURT: Have a seat. Who is your next witness?
MR. KIMBERLIN: I just want to finish up very quickly
with Mr. Walker and then I'll call Mr. Hoge. I'll call Mr.
Akbar and I'll call Mr. McCain very quickly. I'll try to move
it quicker, ask the questions faster.
THE COURT: Not on my account, but if you observe the
jury periodically.
MR. KIMBERLIN: Yeah.
THE COURT: They want to get through this.
MR. KIMBERLIN: I understand and I'm ready to rock
and roll.
THE COURT: Of course if you have to be stuck inside
a day like today is a good day for that.
(Jury entered the courtroom.)
THE COURT: We've had several leaks in the building
but hopefully you won't be needing those umbrellas in here.
Just about flooded out a couple of weeks ago on this floor.
All right, sir, you can take the stand. He's
previously sworn. Go ahead.
DIRECT EXAMINATION (Resumed)
BY MR. KIMBERLIN:
Q When we ended up we were talking about you were
helping my wife file charges. Can you tell the jury what the
result of those charges were?
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A In what sense, sir?
Q Were they, dismissed?
A My understanding is that she decided she no longer
could fight you. She couldn't beat you in court and she
withdrew the charges and has since unfortunately fled.
Q Fled?
A Yes, last I heard she lives somewhere in Utah.
Q Well the charges were dismissed, right?
A Yes.
Q And the Department of Children's Services or Social
Services investigated those charges, right?
A I don't know.
Q Did you call the FBI and ask them to come to the
Department of Social Services and tell them that my wife was
present there at the time?
A I'm sorry, what --
Q Did you ever call the FBI Agent Gorsick?
A I have called them in relationship --
BY MR. KIMBERLIN:
Q So you talked a lot about my daughter, my 15-year old
daughter on your blog --
BY MR. KIMBERLIN:
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Q -- on Twitter --
THE COURT: It's a leading question, sir.
BY MR. KIMBERLIN:
Q Here's a tweet right here --
THE COURT: Well have it marked.
(The document referred to was marked
as Plaintiff's Exhibit No. 12 for
identification.)
MR. OSTRONIC: Your Honor I will note it's after
August 30th.
BY MR. KIMBERLIN:
Q It's marked as Plaintiff's Exhibit 12, can you
identify that? Is that your tweet?
A It appears to be, yes.
Q And what does it say?
A It says --
MR. OSTRONIC: Objection, Your Honor, its after --
THE COURT: Are you offering that?
MR. KIMBERLIN: This lawsuit --
THE COURT: Are you offering this exhibit?
THE WITNESS: Actually --
THE COURT: Hold on a second. Are you offering that
exhibit?
MR. KIMBERLIN: I believe so, yes.
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THE WITNESS: I need to amend my answer.
THE COURT: Hold on a second. Can you recognize that
or not?
THE WITNESS: Well the problem is it's altered in
some ways. There's some text at the bottom that is not --
THE COURT: You don't recognize those things that
have been changed on it?
MR. KIMBERLIN: We're talking about --
THE WITNESS: I'm sorry, two people talked at once.
What were you asking, Your Honor?
THE COURT: Can you identify that document or not?
THE WITNESS: The whole document, no.
BY MR. KIMBERLIN:
Q Can you identify the tweet within the document?
A I see, let's see here. I see something that looks
like, I'm trying to make sure. No, parts of this is cut off.
I mean you can see where it says but discover. It's cut off.
You have not produced the entire thing.
Q Have you stated on your blog that people have a right
to attack my daughter because of corruption of blood?
A No, I have literally said the opposite of that. I
said one of the things that makes this country great is that we
judge people by them, not by who your father is, not by who
your daughter is, not by anything. And I talked about how in
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the treason clause they do away with the principle of the
corruption of the blood. I specifically cite that as an
example what makes America great. We do not judge people by
race, religion or who your parents are, even when you're a
traitor. We do not judge your children by your treachery, even
when you're a terrorist.
MR. OSTRONIC: What is it?
MR. KIMBERLIN: It's part of a blog post from Mr.
Walker.
MR. OSTRONIC: These aren't your notes?
MR. KIMBERLIN: No.
MR. OSTRONIC: Are you sure?
MR. KIMBERLIN: Yes.
BY MR. KIMBERLIN:
Q Okay, I'm going to show you Plaintiff's Exhibit 13.
Does that look like part of a blog post, your blog post?
A Looks like an altered part.
Q Is it true that in a blog post that you say that I
wish there was some way to bring a criminal to justice without
his elder daughter or any of his family being dragged into
this, but Brett has made this impossible.
MR. KIMBERLIN: I'd like to show this to counsel.
THE COURT: Do you have an answer to that?
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THE WITNESS: I don't remember the question
precisely.
THE COURT: Ask the question again.
BY MR. KIMBERLIN:
Q Did you say that in a blog post at any time --
A What?
Q Did you say in a blog post I wish there was some way
to bring Kimberlin to justice without his elder daughter or his
family being dragged into this, but Brett has made this
impossible?
A I was lamenting the fact that your daughter is
suffering as a result of your misconduct.
Q I'm going to hand you Plaintiff's Exhibit 14.
A Okay.
Q Do you recognize that?
A Well give me a minute. This is chunks of an altered
post. I can see clearly where there's things jumping from one
place to the other. There's this mysterious black square in
the middle of this document and the text on this page doesn't
line up with what's come up next. So there's clearly --
Q Do you recognize --
A -- pages missing.
Q Do you recognize the first page of that document?
A Yes, it looks vaguely like something I wrote, but
altered to some degree I'm not sure of.
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Q Can you read the title to that post?
A Vile Brett Kimberlin's Manipulation of his Daughter.
Q Now you said that you were representing my wife in a
matter. You're not licensed to practice law in Maryland are
you?
A And I did not practice law in Maryland.
Q You didn't practice law in Maryland. Now you stated,
have you stated on various times that if I sued for defamation
that you would take depositions from my daughter and her
friends.
A I thought it was very likely that such depositions
would occur. That is basic legal defense and I'm not the only
person that said that. Mr. Levy who used to be your own
attorney, Paul L. Levy has said the same thing.
MR. KIMBERLIN: Objection, objection.
BY MR. KIMBERLIN:
Q Now you, after you helped my wife file these things
you created with Mr. Hoge, am I correct a defense fund for my
wife to raise money for her?
A That is correct.
Q And you hired, you raised how much, thousands, $100?
A I do not. I do not personally control the funds.
Q Suffice it to say it was a fairly significant amount.
A Well --
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BY MR. KIMBERLIN:
Q And you used that money to hire an attorney, another
attorney to represent my wife?
A I did not use the money. As I recall John Hoge
decided to loan several thousand dollars to your wife to help
her get an attorney.
Q To what?
A And as of last month, I heard he's still in the red
on that.
Q So he loaned it to her, okay.
A Well I don't mean, no, it's not a loan to her. We
were hoping that he would get it back from donors.
Q So you did a blog post. Plaintiff's Exhibit 15.
A And you're asking if this is authentic?
Q Yes. And what's the title of that post?
A I'm not done reading it, sir. The Tetyana Kimberlin
Defense Fund.
Q Now these charges were nolle pross, are you aware of
that?
A Are you talking about the charges with the defense
fund?
Q Yeah, that you said --
A The defense fund was not about filing criminal
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charges. The defense was helping to --
Q Okay, but I'm talking about the charges that you said
you helped my wife file.
MR. OSTRONIC: Objection. He was talking about the
defense fund --
MR. KIMBERLIN: No, I'm just moving backwards with
it. I'm saying --
THE COURT: The charges that he helped your wife file
while he was representing her?
MR. KIMBERLIN: Yes, uh-huh, I'm asking --
THE COURT: What --
MR. KIMBERLIN: Does he know that they were nolle
pross?
THE COURT: Why is that relevant?
MR. KIMBERLIN: Does he know whether they were nolle
pross?
THE WITNESS: I believe I answered that.
THE COURT: Well the objection is sustained.
MR. KIMBERLIN: No, he said that she, you stated that
she was --
THE COURT: The objection was sustained to that
question. How is it relevant if the State entered a Nolle
Prosequi? All that means is the State elected not to go
forward. It doesn't mean anything to do with whether the
substance of the charges --
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BY MR. KIMBERLIN:
Q Now after those charges were dismissed, nolle
prossed, whatever you want to call it, did my wife have an e-
mail conversation with you?
A I believe --
THE WITNESS: Attorney-client privilege.
MR. OSTRONIC: Attorney-client --
MR. KIMBERLIN: It's not attorney-client --
THE COURT: No, but how is he going to testify to
what your wife said?
MR. KIMBERLIN: He's going to testify.
THE COURT: Well no he isn't. That's hearsay and
there's no exception to the hearsay rule that that would come
in under. She's not here and you're obviously offering the
statement for the truth of the matter.
MR. KIMBERLIN: I'm not offering to show what she
told him. I'm offering to show what he told her.
THE COURT: Was it out of court?
MR. KIMBERLIN: Was it out of court?
THE COURT: Was the statement made out of court?
MR. KIMBERLIN: It was made in an e-mail.
THE COURT: Is that out of court?
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THE COURT: And you're offering it for the truth of
the matter, the statement?
MR. KIMBERLIN: I'm offering it to --
THE COURT: That's yes or no, are you offering the
statement to show that it was true at the time it was made?
MR. KIMBERLIN: I'm offering it to show that he
defamed me in his e-mail to my wife which is part of this case.
And she told him to remove all posts because they were not
true.
THE COURT: Okay, that's --
THE WITNESS: Sir --
THE COURT: That's what you want him to say but
that's not the answer to my question. My question is are you
offering the statement to show that at the time the statement
was made it was true?
MR. KIMBERLIN: I'm offering it to say that his
statement was true.
THE COURT: And it was made out of court, correct?
MR. KIMBERLIN: It was made in an e-mail. I'm asking
him to look at the e-mail, identify the e-mail and state
whether he wrote that e-mail.
THE COURT: Well first let him identify it.
THE COURT: If it's his statement it's admissible --
MR. KIMBERLIN: Yes.
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THE COURT: -- because he's a party opponent.
MR. KIMBERLIN: Yes.
THE WITNESS: Your Honor --
THE COURT: You don't get to do that.
THE WITNESS: Sorry, I apologize.
THE COURT: You don't have to apologize. Lawyers --
THE WITNESS: But there's an attorney-client issue.
THE COURT: -- are hard to control on the witness
stand.
THE WITNESS: Okay, guilty. This is an attorney-
client communication.
MR. OSTRONIC: Your Honor, I'll just note that this
was not, this is a forwarded message from somebody else, okay.
THE COURT: If we're going to do this with every one
of those pieces of paper over there, there's not enough hours
left in the day for that.
MR. KIMBERLIN: I'm trying to move quickly, Judge,
and I'm almost done with this witness.
BY MR. KIMBERLIN:
Q This is an e-mail thread --
THE COURT: Well you have to ask him if he can
identify it.
BY MR. KIMBERLIN:
Q And I will ask you if you can identify part of the e-
mail thread.
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A The problem is this is attorney-client communication
at that point.
MR. KIMBERLIN: Your Honor, there's no attorney-
client communication.
THE WITNESS: Yes, there was. We were --
THE COURT: Well hold on a second. You can't argue
with him. Were you representing her at that time?
THE WITNESS: At that time, yes.
MR. KIMBERLIN: Your Honor, he wasn't representing
her.
THE COURT: Well he has said that he was.
MR. KIMBERLIN: She, she --
THE COURT: You're not a witness right now. You're
asking questions.
MR. KIMBERLIN: No, I know but I can argue.
THE COURT: Well I'll reserve ruling on it until that
argument comes up.
THE COURT: So move onto a different document.
MR. KIMBERLIN: A different document?
THE COURT: And what number is that?
THE WITNESS: It's 16.
MR. KIMBERLIN: This is 16.
THE COURT: 15, 16, okay, make sure that you move
those documents over here to the clerk because I don't want
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them to get mixed up with stuff that's not --
MR. KIMBERLIN: And you know, my objection is that
this e-mail was sent not just to --
THE COURT: Well you can't testify about what --
MR. KIMBERLIN: No, I'm just talking about attorney-
client. He can't have attorney-client privilege and have it
sent to Mr. Hoge, too.
THE WITNESS: Actually since there's my paralegal --
THE COURT: Well hold on a second, gentlemen, don't
put me out of work here. I'll make the ruling. I'll reserve
ruling on that.
BY MR. KIMBERLIN:
Q All right, now you started, you were involved with
the campaign everybody blog about Brett Kimberlin Day, right or
something to that effect?
A I did not start everybody blog --
Q No, I said you were involved with it.
A Involved how?
Q You participated in it.
A A number of people started doing it.
Q Uh-huh.
A I noted it was being done. I said frankly, I was
humbled to see people rising up to help protect me. They
literally took the attitude of if Brett's going to sue Aaron
he'll have to sue me too. And hundreds, I don't even know how
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many people took that attitude. If Brett's going to continue
to abuse the court against Aaron, they're going to do it too.
I'm sorry I get emotional because I was moved by how many
people stood up for free speech with me. And I said I can't
ask you folks to participate.
Q I just asked you a simple question, were you involved
with that?
A Again that's a vague term so I'm trying to explain
exactly what my quote/unquote participation was.
Q Okay.
A So I can't said to them I can't ask you to do it.
Q How many blog posts do you think were generated from
everybody blogging about Brett Kimberlin?
A I don't know.
Q Thousands?
A Possibly.
Q Tens of thousands?
A Yes, and none of them defamatory as far as I know.
Q Now you were also you were involved with another
campaign called everybody blog about the Howard County
Prosecutors or Howard County State's Attorney's Office,
correct?
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THE COURT: How is the Howard County Prosecutors and
the Howard County State's Attorney --
MR. KIMBERLIN: Because they filed charges against me
in Howard County. They put this list --
THE COURT: What does that have to do with this?
MR. KIMBERLIN: Because they attacked the
Prosecutor --
THE COURT: Well that's not relevant to this case.
BY MR. KIMBERLIN:
Q Are you familiar with the campaign that you started
called Maryland is for Stalkers?
A I did not start that.
Q Are you aware of that campaign?
A I don't know if it's a campaign. Its a phrase one
person used.
Q Uh-huh.
A Believe it was Paul Lemon.
Q Right, now I'm going to take this opportunity to ask
you to identify these other documents and I'm going to
introduce those into evidence.
I have another question. On a lot of your blog posts
you put this graphic, popcorn graphic, you tell people to get
out the popcorn, can you explain that?
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A Let's see, I believe very strongly in the idea of
being a happy warrior to show cheer, and you know, even in the
face of adversity. You have been suing me, filing peace
orders, filing criminal charges, et cetera for almost three
years now, Mr. Kimberlin. And so it is my way of showing
people that I am cheerful as I do this. Get out the popcorn,
we'll have some fun.
Q This is entertainment, right?
A It's what, am I supposed to cry every time you sue
me, Brett, it's getting to be tedious.
Q Every time I sue you. How many suits do I have
against you right now, Mr. Walker?
A Oh, let's see here. You're presently suing me in two
courts including this one. You've also filed two peace orders.
Q Do I have a peace order against you?
A No because you lost.
Q Did I lose?
A Yes, you lost.
Q Did Judge Veaghy issue that peace order?
A He briefly issued it and then Judge Rupp took it away
as unconstitutional.
Q Was it Judge Rupp or Judge Johnson?
A No, Judge Johnson was the first time. You had filed
one peace order. That got appealed. Judge Johnson struck it
down. And then you filed a second one. Mr. Veaghy disregarded
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Brandon Burke v. Ohio, a binding Supreme Court precedent. And
then when that got to Judge Rupp, Rupp says well that violates
Brandon Burke v. Ohio.
Q Isn't it true that you came in front of Judge Johnson
and told him that this stuff would not happen in the future and
Judge Johnson ruled --
A I'm sure I said five words during the entire --
BY MR. KIMBERLIN:
Q -- gave you a break after Judge Veaghy made that
ruling?
THE COURT: You said you had a few more questions?
MR. KIMBERLIN: Yeah, I'm pretty much done. I'm just
going to try to get all these documents into evidence right
now.
THE COURT: What are those documents? They've all
been marked and identified.
MR. KIMBERLIN: Some of these have been marked
already.
THE COURT: Just put them there and we will go over
the exhibits later. Let's move on with the witnesses. I'll
reserve ruling on those documents.
MR. KIMBERLIN: Okay. I have another question.
BY MR. KIMBERLIN:
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Q You stated earlier that you didn't attack or target
my employer, my non-profit. Can you identify this exhibit?
THE COURT: Is that marked?
MR. KIMBERLIN: Hold on, let me mark it.
THE WITNESS: This is not something I wrote so I
can't authenticate it.
THE COURT: What is that, number what, 17?
MR. OSTRONIC: Can I see that?
BY MR. KIMBERLIN:
Q So are you saying you don't recognize this at all?
A I recognize some. I don't know the rest of it so I
can't authenticate it. The fact is this was, it looks like
something written by somebody working for the Dan Backer
Herbert Law Firm. These are people who believed in my cause
and offered pro bono representation. As you pointed out pro
bono means they believe in what they're helping with.
Q So tell me who is Dan Backer?
A Dan Backer is an attorney in the Capitol area.
Q That filed two lawsuits for you against me and lost?
A Actually filed one lawsuit, I filed the other one.
Q But he represented you in both cases.
A Yes.
Q Uh-huh, can you read the title to this?
A Is this evidence, okay. We can break Kimberlin by
going after Barbara Streisand, Teresa Hinds Carrie, George Sols
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and everyone who backs Kimberlin with financial donations.
Q So the idea was to go after the funders of my non-
profit?
A I have no idea.
Q But have you ever posted on your blog that people
should not fund my non-profit?
A I have said that I believe that you use your non-
profits in ways -- how can I explain this? Your non-profits
are funding your lawsuit abuse.
Q Just answer the question, just answer the question --
A I am attempting to.
Q And so you attempted to have me arrested multiple
times, am I correct?
A Attempted to have you arrested?
Q I mean you filed charges to have me arrested?
A No, I don't believe any of the charges would cause
you to be arrested, but most maybe if we're lucky convicted.
Q But you wanted me to get arrested. You've asked that
I be arrested.
A You went to court and repeated --
Q I asked you a simple question, yes or no?
A You committed multiple crimes against me and I --
Q I'm asking a simple question --
MR. OSTRONIC: Objection, Your Honor, badgering a
witness.
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BY MR. KIMBERLIN:
Q Yes or no, have you asked that I be arrested?
THE COURT: Well witness is doing fine, overruled.
THE WITNESS: You have committed multiple crimes
against myself and my wife.
BY MR. KIMBERLIN:
Q I asked a simple question, yes or no.
A And so I have sought justice against you, that is
correct.
Q And you filed multiple civil charges against me,
right?
A Civil charges --
Q Well --
A -- that's a contradiction in terms.
Q Okay, your case in Virginia included how many
criminal charges?
A How many criminal charges, I do not know.
Q Extortion, harassment and whatever, like six or
seven --
A I don't believe I charged you with harassment.
Q Whatever, nobody, my point is has anybody in an
official position anywhere bought into your whole narrative,
you know, that I got you fired. That I'm a pedophile. That
I'm a murderer. That I'm a perjurer or any of the other things
that you've tried to get me arrested for and charged with? Has
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anybody ever bought into that?
A Anyone believed that that's what occurred?
Q Has anybody ever bought into that? Have you ever --
BY MR. KIMBERLIN:
Q Have you ever gotten a federal judge, a state judge,
a state's attorney in Howard County, in Carroll County, in
Montgomery County anywhere to say yes, Brett Kimberlin is what
you profess I am?
A Yes, Patrick Frye for example --
Q That's not, he's not an official. He's a blogger,
another right wing teabag blogger out of California.
A No, he is an assistant district attorney.
THE COURT: It's Tea Party.
MR. KIMBERLIN: Tea Party, yeah.
BY MR. KIMBERLIN:
Q Okay, another Tea Party blogger friend of yours --
A Well, I was going to say --
Q -- out in California.
A So because he's my friend he's not an official
suddenly?
Q I'm saying has anyone in an official position that
you've ever filed any charge or any pleading or any civil case
ever bought into your lies?
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A You're asking if any state or federal official, yes,
Mr. Frye.
Q I'm asking you if anybody that you ever filed
anything with, State's Attorney McCarthy, the Howard County
prosecutor --
A That I filed --
Q The federal judge in Motts, you know, any of these
judges, you know the ones that you filed here, the State's
Attorney McCarthy that you've been to how many times? The
police down in Manassas, the FBI that you've called and said
that I had bomb materials and pornography all over my home, you
know --
BY MR. KIMBERLIN:
Q Has any of these people ever bought into this?
THE COURT: The objection is sustained. This is
argumentative.
MR. KIMBERLIN: Okay, I'm asking, I'm trying to get
to a point, you know. He's called me a murderer and a
pedophile and a --
THE COURT: Well you don't get to argue at the same
time you ask questions.
MR. KIMBERLIN: -- and nobody has ever bought into
this.
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THE COURT: The objection is sustained. Anything
else from this witness?
MR. KIMBERLIN: No, no further questions.
THE COURT: I'll right, sir, you can step down. Oh,
do you have questions?
MR. OSTRONIC: No, Your Honor, I think Mr. Kimberlin
asked every question I wanted.
MR. KIMBERLIN: Next witness is --
THE COURT: Okay, you can step down, sir.
(Witness excused.)
THE COURT: Counsel, can you come up --
THE COURT: Try to get to the point --
MR. KIMBERLIN: I'm going to do this. This is going
to be really fast, 10 minutes.
THE COURT: We've got enough history here, okay.
THE COURT: Okay, go ahead, Mr. Clerk.
WILLIAM HOGE, SR
called as a witness on behalf of the plaintiff, having been
DIRECT EXAMINATION
BY MR. KIMBERLIN:
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Q Please state your name for the record.
A My name is William John Joseph Hoge.
Q And you're a blogger?
A Yes.
Q You consider yourself on any particular right, left,
progressive, liberal, Tea Party or anything like that, you
label yourself?
THE WITNESS: I would probably say that I would, most
people would consider me a conservative.
BY MR. KIMBERLIN:
Q Now you've heard all of the stuff that I've asked Mr.
Walker here in court. How many times do you think you've
blogged about me and tweeted, blogged, anything?
A Well I did a word search for your name on my blog a
few days ago and it came up 783 times.
Q Uh-huh, okay.
A Tweets probably twice that because in some cases when
I do a blog, a tweet about a blog post it goes out twice rather
than just once.
Q All right, so when you blog, you tweet, that tweet
goes to these other defendants and many other people, am I
correct?
A Well it goes, it typically goes to the universe
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because it's an open tweet.
Q Right, so and every day you have a post called Team
Kimberlin Post of the Day?
A That's one of the features of my blog.
Q Right, uh-huh. And you also have a donate button on
your blog where you can raise money and ask people to donate to
you, right?
A Actually it's called a tip jar, but yes.
Q Yeah, tip jar, uh-huh. Okay, and you started this
campaign called Everybody Blog about the Howard County
Prosecutors. Can you tell just why that was started?
A Yes, the --.
THE WITNESS: Yes, Mr. Walker and his wife showed me
credible evidence that you had, in fact, stalked them in the
parking lot of the Howard County District Courthouse in
Ellicott City. And when Mr. Walker and his wife went to talk
with the State's Attorney's Office they were told by Assistant
State's Attorney Brewer that if they didn't want to be harassed
they should stay out of Maryland. And that didn't strike me as
responsible way for a State's Attorney's Office whether they're
going to nolle pross the, and not follow-up on charge or not,
that just struck me as a very unfortunate attitude for a
State's Attorney's Office. And so I thought they should be
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held accountable for it.
BY MR. KIMBERLIN:
Q So you started this campaign and had people calling.
How did it work?
A Well basically the idea was that people should ask
the State's Attorney himself if that was, in fact, his policy.
Q So that's where all this Maryland is for Stalkers
kind of --
A I have no idea where exactly that came from. I have
seen that there was a blogger who for a short time had on
Zazzle which is one of these internet sales companies a bumper
sticker that said that. I think it was probably a parody on
Virginia being for Lovers.
Q All right, so the State's Attorney in that case did
not buy into Mr. Walker's, you know, allegation that I stalked
his wife?
A I am not --
Q They didnt even charge --
A I'm not privy to any of their decisions.
Q Did he even try to file charges, do you know?
A I'm sorry?
Q Did Mr. Walker even try to file charges? Did they
even --
A You have to ask Mr. Walker that. I wasn't a
participant in that.
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Q But no charges came out of that, right?
A So far as I know well the charge, there was an
application for statement of charges --
Q That's rejected.
A -- that came out. But the case was nolle prossed.
Q Uh-huh, now so let's just get down to the nitty
gritty here. You've called me a pedophile on your blog,
haven't you?
A I've expressed the opinion that I believe you might
be.
Q And you've used the Pedo bear meme with my picture
interspersed with it?
A I found it on the internet and as a bit of news
reproduced what I found as a image via Google.
Q And you went ahead and put that out. And so I'm just
going to show you this document here. I'd like you to identify
it as coming from your blog. And I've highlighted a few things
in yellow.
A This appears to be a jumbled bit of snippets from,
that are from blog posts. But I dont believe that any of them
are complete and show context.
Q Well we're not talking about them. I'm asking you
right now, can you read that under that picture.
A It says the dread Pedo Kimberlin.
Q Uh-huh, dread Pedo Kimberlin. And the same thing in
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these underlying yellow things that --
MR. OSTRONIC: Objection, Your Honor --
MR. OSTRONIC: Your Honor, I'm going to object. It
has not been authenticated as far as I can tell.
THE COURT: The objection is sustained.
BY MR. KIMBERLIN:
Q Can you authenticate those?
A No.
Q You can't authenticate them.
A No, not without the complete context of all the blogs
to make sure that nothing's altered.
Q Take a look at this, oops, identified as Plaintiff's
Exhibit 19 --
A I can't identify this as being from my blog. It says
it's a page 2 of something, but I can't identify it.
Q Page 2 from Oblast --
A It might --
Q What is the name of your blog?
A I have, that's the name of my blog but that would not
be the way my blog would format a page. So no, I can't
authenticate it.
Q So we were talking about tweets a minute ago. You
said you might have done how many tweets?
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A On the order of perhaps two or three per post so that
would be on the order of 1500, perhaps 3,000.
Q So if I handed you this list of all your tweets,
thousands and thousands and thousands of tweets, could you
identify that?
MR. OSTRONIC: Your Honor, --
THE COURT: Well have it marked.
MR. KIMBERLIN: All right.
(The document referred to was
marked as Plaintiff's Exhibit No.
19 was marked for
identification.)
BY MR. KIMBERLIN:
Q Mr. Hoge, have you ever called me a pedophile on your
blog and let's just assume --
MR. OSTRONIC: Your Honor, if that could be marked?
THE COURT: This has been marked.
BY MR. KIMBERLIN:
Q Have you ever called me a pedophile on your blog or
on Twitter?
A I have said that I have reason to believe that you
might be one.
A I referred to you as one, yes.
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Q The Everybody Blog About Brett Kimberlin Day, do you
know how many blog posts that generated?
A No, I dont. I do know that I was aware of something
on the order of 250 to 300, but that's probably a tip of the
iceberg.
Q And if you did a blog search of my name today, if you
did a search on Google, Brett Kimberlin plus the word
pedophile, do you know how many times that would come up?
A I have no idea.
Q Do you know what Radian6 is?
A It's essentially an internet survey firm sort of like
a commercial version of Google.
Q So if I were to show you Radian6, 40,000 blog posts
about Brett Kimberlin that wouldn't surprise you, would it?
A It wouldn't surprise me whether it was true or
untrue. I could believe that that would be true.
Q Now you were a party to an e-mail thread between my
wife and Mr. --
BY MR. KIMBERLIN:
Q -- Mr. Walker, am I correct there?
A Possibly.
THE COURT: What's the basis of the objection?
MR. OSTRONIC: The objection is he's going back to
Tetyana again, whos not around to talk about this.
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MR. KIMBERLIN: No, I'm asking if he was part of that
e-mail thread.
MR. OSTRONIC: He's just asking if she --
THE COURT: E-mail thread?
MR. KIMBERLIN: Thread, you know, she wrote an e-
mail, they wrote an e-mail back or --
THE COURT: That's a yes or no question.
MR. KIMBERLIN: Yes, that's a yes or no question.
THE COURT: You can answer yes or no.
THE WITNESS: I did engage in e-mail exchanges that
involved both of them.
BY MR. KIMBERLIN:
Q And as a result did that e-mail thread, did you
terminate the defense fund that you had started for her?
BY MR. KIMBERLIN:
Q Did you take any action after you received that e-
mail?
A I don't know which e-mail you're talking about so,
you would have to show me the e-mail and I could tell you what
action I might have taken as a result of it.
Q Now you met with my wife after the hearing, am I
correct?
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A Yes.
Q And as a result of that meeting you created a defense
fund, am I correct?
A Not as an immediate result of that meeting, not our
first meeting, no.
Q Did my wife ever tell you to --
BY MR. KIMBERLIN:
Q Did you stop that defense fund at some point in time?
A Yes.
Q And was that on account of her?
A At her request.
Q Uh-huh, and at that time she asked you to remove any
posts about --
THE COURT: Sustained. The objection is sustained.
MR. KIMBERLIN: Your Honor it goes to malice.
THE COURT: Well it's hearsay. He can't testify to
what she said. She's not party in this case.
BY MR. KIMBERLIN:
Q Okay, did you not remove any blog posts --
THE COURT: Did you not remove?
BY MR. KIMBERLIN:
Q Did you fail to, did you refuse or fail to remove any
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posts after those charges were nolle pross?
A I've only ever removed one blog post that I've put up
in the three years --
Q That's not the question --
A It's the answer to your question. I have only
removed one blog post that I've ever put up in my entire three
years of blogging so far. And that was the post for the
Tetyana's fund raising money. That's the only post I've ever
taken down.
Q After those charges were nolle pross did you take a
trip down to this courthouse and get a certified copy of those
charges and post them on your Scribd account?
A No, not this courthouse. They're not kept here.
Q Well whatever courthouse.
A Across the street, District.
Q But you, so the charges were dismissed, you come down
and get a certified copy and post them on Scribd.
A Yes.
Q And those charges, do you know whether those charges
were not only nolle prossed, but expunged and sealed by the
court?
A The charges are not on the Maryland Judiciary Case
Search right now. I can't tell you what the court may have
done with them.
Q Well --
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A I can't tell you what the court did.
Q Did I make a request to you --
BY MR. KIMBERLIN:
Q -- through your attorney --
THE COURT: Sustained. This is going to have to be
leading.
BY MR. KIMBERLIN:
Q Were you ever requested to remove that document
because it had been expunged and nolle prossed?
BY MR. KIMBERLIN:
Q So you have, have you ever tried, have you wanted to
get me arrested? Have you asked that I be arrested?
BY MR. KIMBERLIN:
Q Have you ever stated --
BY MR. KIMBERLIN:
Q -- on your blog that you want me arrested?
A Not to my knowledge. I have no recollection of ever
saying that on my blog.
Q Have you ever filed charges against me?
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A Yes.
Q Now tell the members of the jury what happened to
those charges?
A They were nolle prossed by the Carroll County State's
Attorney.
Q Right, and you heard a lot in this courtroom about
charges and filings and stuff like that. Do you know what
happens when a citizen like you or like Mr. Walker goes and
files with the commissioner that I committed a certain crime,
in other words you said whatever, when you filed those charges
that I committed some kind of crime, you know, perjury, arrest,
whatever it was and do you know the process that happens once
those charges are filed?
BY MR. KIMBERLIN:
Q Do you know that the police come to the person's
house --
BY MR. KIMBERLIN:
Q Have you filed any, do you know a reporter named, or
an individual named Bill Schmalfeldt?
A Yes.
Q Have you filed 367 criminal charges --
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BY MR. KIMBERLIN:
Q -- against Bill Schmalfeldt?
THE COURT: Sustained. That is the most leading
question I have ever heard.
BY MR. KIMBERLIN:
Q Okay, have you filed any charges against Bill
Schmalfeldt?
MR. OSTRONIC: I'm still going to object.
THE COURT: Sustained. You can't tell the person the
answer to the question in the question.
MR. KIMBERLIN: Okay, okay --
THE COURT: That's what a leading question is.
BY MR. KIMBERLIN:
Q Do you know Bill Schmalfeldt?
A Yes.
Q Have you ever filed any charges against him?
A Yes.
BY MR. KIMBERLIN:
Q How many?
A It's some place north of 360 for multiple violations
of a peace order.
Q So 367 criminal charges. My question what were the
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results, simple question were they nolle prossed?
A At my request.
Q And you filed, why did you file, what got Mr.
Schmalfeldt on your --
MR. OSTRONIC: Objection, Your Honor, this cant
be -- defamation of him.
THE COURT: Sustained. What does Mr. Schmalfeldt
have to do with this?
MR. KIMBERLIN: Okay, I'm only trying to show that
these individuals attack anyone who supports me. He's a
reporter. He wrote a story --
THE COURT: Well that's not a cause of action.
MR. KIMBERLIN: Okay, and what happens?
THE COURT: It's not a cause of action whether they -
- even if they did that it's not a cause of action.
MR. KIMBERLIN: It goes to malice. It goes to
malice, Judge.
THE COURT: For someone else to be, no. Ask another
question, if you have one.
BY MR. KIMBERLIN:
Q So you accused me of crimes that I've never been
convicted of, am I correct?
A That's true.
Q Youve asked that I be arrested for these crimes.
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A No.
Q Okay, you filed charges, let me ask this. When you
file charges against me, the caption of that charge reads State
of Maryland versus Brett Kimberlin.
A Yes.
Q And then you, have you ever taken that charge, that
title and gone on your blog or on Twitter and said something to
the effect State of Maryland charges Brett Kimberlin with X?
A I have reported the fact that you have been charged
with things by me or by other people.
Q So you create the document, you file the charge and
then you report it as gospel. And then --
BY MR. KIMBERLIN:
Q -- what do you do when --
THE COURT: Sustained, ask another question.
BY MR. KIMBERLIN:
Q Okay, what do you do once those charges are nolle
pross?
A Typically I write a story saying, discussing the
disposition of the charges.
Q But you don't.
A No?
Q Do you correct it?
A It's not a correction to say that this event happened
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and then a second event happened. That's not a correction.
MR. KIMBERLIN: No further questions.
MR. OSTRONIC: I just have one question on the Bill
Schmalfeldt bit.
CROSS-EXAMINATION
BY MR. OSTRONIC:
Q Your charges were, what was the brief disposition of
those?
A Because things were getting so out of hand at the
suggestion of the Carroll County State's Attorney's Office Mr.
Schmalfeldt and I engaged at a mediation session. At the
mediation session Mr. Schmalfeldt agreed to abide by the peace
order going forward. If I was going to get him to abide by the
peace order there wasn't any reason to go any further. And so
if you're going to do this, then let's just dismiss the
charges.
Q Okay, thank you.
MR. OSTRONIC: That's all I have.
THE COURT: You can step down.
MR. AKBAR: Your Honor, I have a couple of questions
of the witness.
THE COURT: Sure.
BY MR. AKBAR:
Q Have I ever instructed you to lie about Mr.
Kimberlin?
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A No.
Q Am I involved with your blog at all?
A I think you read it from time to time but that's it.
Q Do any, does the National Bloggers Club or any of its
directors tell you to write or what to write about Mr.
Kimberlin?
A No.
Q Okay.
MR. AKBAR: Thanks.
MR. KIMBERLIN: Redirect --
THE COURT: Are you finished?
MR. AKBAR: Yes, sir.
THE COURT: Okay.
REDIRECT
BY MR. KIMBERLIN:
Q You've been to events with Mr. Akbar?
A Yes.
Q Youve been nominated for award by National Bloggers
Club for writing about me, am I correct?
A Yes.
Q You coordinated with Mr. Akbar to raise funds for
this Tetyana Defense Fund, am I correct?
A He volunteered to be a contributor. He wasn't
involved in starting the fund.
Q Youve been on his radio program, am I correct?
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A He has an internet radio talk show from time to time.
Q And on that radio program have you talked about me?
MR. OSTRONIC: I'm not sure where this thing's going.
THE COURT: It's not redirect.
MR. KIMBERLIN: He's trying to distance himself in
this guy --
THE COURT: Well this isnt redirect.
MR. KIMBERLIN: Yeah, and I'm trying to show --
THE COURT: I know what you're trying to show but
it's not redirect. You asked if you could redirect and the
questions that you're asking are not redirect questions,
sustained.
BY MR. KIMBERLIN:
Q So have you ever received any money, any funds at all
from the National Bloggers Club?
A No.
Q Have you ever given money to the National Bloggers
Club?
THE COURT: Thank you, you can step down, sir.
THE WITNESS: Thank you, Your Honor.
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(Witness excused.)
THE COURT: Next witness.
MR. KIMBERLIN: Ali Akbar.
ALI AKBAR
THE COURT: And spell your last name for the record,
sir?
THE WITNESS: A-K-B- as in boy -A-R.
THE COURT: All right, thank you.
DIRECT EXAMINATION
BY MR. KIMBERLIN:
Q Mr. Akbar, have you ever been convicted of a felony?
A Yes.
MR. KIMBERLIN: Your Honor, I believe it goes to his
honesty.
THE WITNESS: You have to impeach me.
THE COURT: Well, what are you -
MR. OSTRONIC: You called the witness.
THE COURT: -- impeaching him for? It's your
witness. You're calling your own witness and impeaching him?
MR. KIMBERLIN: No, I'm trying to show that he's a
fraudster.
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MR. AKBAR: Objection.
BY MR. KIMBERLIN:
A I believe you're a pedophile.
Q So you admit that you've called me that?
A I dont have a blog or anything like that. I've
called you a pedophile and I believe you're a pedophile.
Q Okay, so, but you have a Twitter account, right?
A I have a very popular Twitter account.
Q Uh-huh, right, and you also are involved with a blog
called Bomber Sues Bloggers, right?
A No.
Q You're not. You have nothing to do with that?
A There is no blog that I'm aware of that's called
Bomber Sues. There is a website by the National Bloggers Club
which is a corporation and an entity itself but, and I'm a
director for the National Bloggers Club but that's an entity
and it's not on either side of this case.
Q Do you have a post on Bombers Sues Bloggers?
A No there's no post on there. It's a static website.
There's no blog on Bombers Sue Bloggers dot com.
Q Is there text on there? Is there information on
there?
A I've observed text on the website.
Q You've never put it up there. You never posted it.
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A There's several, there's several hundreds of people,
journalists, award winning journalists and bloggers involved
with the National Bloggers Club and --
Q I'm not talking about that --
A -- Bombers Sue Bloggers dot com.
Q -- Bombers Sue Bloggers.
A It's a National Bloggers Club initiative.
Q Okay so you're the head of the National Bloggers
Club, right?
A Yes.
Q Okay.
A I've been voted in by a board of award winning
journalists and operatives.
Q Uh-huh, so you've raised a lot of money on that site.
A No.
Q You haven't?
A Nope.
Q Bomber Sues Bloggers has never raised any money?
A Now I do a lot of fundraising for charitable
activities, homeless people, the hungry, free speech --
Q I'm asking you a simple question, have you ever
raised any money on Bombers --
A In the context of what I do for a living, no. The
Bomber Sues Bloggers dot com has not been wildly successful.
You are a little known infamous terrorist.
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Q Yeah.
A I have to see that, right? Your Honor, I'm going to
object to this because I can't authenticate it.
THE COURT: All right, wait until he shows them to
you.
THE WITNESS: I need to see that.
THE COURT: What's the number of that exhibit?
THE WITNESS: This is Exhibit 21.
THE COURT: All right, can you identify that, sir?
BY MR. KIMBERLIN:
Q You can't identify that? You've never seen it
before?
A I cannot authenticate that.
Q Can you --
A And I cannot authenticate this document in its
completeness either. I'm objecting to both.
Q Has the National Bloggers Club or Bomber Sues
Bloggers raised any money surrounding me or my name or any of
these charges or allegations or anything?
A The National Bloggers Club is an organization that's
apolitical and focuses --
Q I'm not asking you to give a missions statement. I'm
asking you a simple question, you know.
A All right, what was the question again?
Q Have you ever raised through the National Bloggers
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Club or Bomber Sues Bloggers dot org any money for any purpose
to deal with me, my name or any of these legal issues?
A I'd like to answer no, but clarify, if I may? We've
raised relief funds for bloggers who have lost their jobs;
families who have been attacked. Families like mine, my mother
and my brother have been attacked by your blog
Breitbartunmasked dot com and we've --
MR. KIMBERLIN: I object. I object.
THE WITNESS: And we've raised relief money --
THE COURT: Well it's your question. You wanted to
know had he raised any money --
MR. KIMBERLIN: Well he said my blog. I dont have a
blog.
THE WITNESS: Breitbartunmasked dot com.
THE COURT: You can't, if you think you're not going
to like the answer dont ask the question. You asked him if he
raised money surrounding your name.
MR. KIMBERLIN: Your Honor, I'm just saying he's
making a statement that's false.
THE WITNESS: So no, we haven't raised any money you
know, for people to blog about you, to attack you or anything.
BY MR. KIMBERLIN:
Q So how much money have you raised to defend these
bloggers who have been you know --
A Well I had to consult lawyers and that's why we have
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never established a legal fund for bloggers against you. There
is no legal fund for bloggers --
Q I'm asking --
A You asked to defend --
Q You're evading the question.
A You asked to defend --
Q I'm asking a simple question how much money has the
National Bloggers Club or Bomber Sues Bloggers raised --
A Raised to defend bloggers legally against you, zero.
Q Against me, we're not talking about against me.
We're talking about raised, you know, for the support of --
A Im on the other side of that desk, Mr. Kimberlin,
it's against you.
Q Excuse me?
A You said that these weren't bloggers against you.
I'm on the other side of this courtroom. It's against you.
Q So you don't want to answer.
A I'm happy to answer any question you have.
Q I'm asking you about money. How much money --
A The National Bloggers Club has raised a ton of money
to support --
Q Exactly.
A -- bloggers and their relief fund.
Q Okay, good.
A Nothing to do with you. Isnt that funny.
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Q So --
A I would object to this document. I cannot
authenticate it.
THE WITNESS: It's incomplete. It's altered.
MR. KIMBERLIN: -- it's Ali Akbar's twitter feed.
THE COURT: Well what's the number of the document?
MR. KIMBERLIN: It's document 22, Plaintiff's Exhibit
22.
THE COURT: And --
MR. KIMBERLIN: And there's you know, there's a
number --
THE COURT: He's testified that he can't identify it.
MR. KIMBERLIN: Well he's testified that he can't
identify it.
THE WITNESS: Mr. Kimberlin, if you wanted to --
THE COURT: Hold on one second, sir. He said he
can't identify it so end of story.
MR. KIMBERLIN: So I would like to introduce them,
I'm going to ask him simply --
BY MR. KIMBERLIN:
Q Did you ever write a Twitter post ever on July 27,
2013 that said Brett Kimberlin is a pedophile and his hired
cyber thugs hate when we tweet about it, did you ever write
that?
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A I don't recall that tweet in particular but I believe
that statement to be true.
Q Did you ever --
A You have hired people to attack me and my family.
Q Answer the question, that's it. So did you write a
tweet on July 27, 2013?
A I'm not aware of what I wrote on that day.
Q So we've uncovered Brett Kimberlin's big secret, he's
a pedophile with other pedophiles around his children.
A You have a convicted child pornographer filming your
14-year old daughter's music videos.
Q Hello, hello --
A And you sent him to my party at the event that you
reference with Mr. Hoge to harass minors that were at my party,
Mr. Kimberlin. So I believe the content of that tweet to be
true, too. But I cannot recall it.
Q Did you on July 29th, 2013 say that Neal Rauhauser
supports pedophile Brett Kimberlin?
A Objection, that's a non-party.
Q Did you --
MR. AKBAR: Thank you, Your Honor.
THE COURT: Just for the record, ladies and
gentlemen, this gentleman represents himself. So it's kind of
two-headed witness. He's representing himself and he's a
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witness at the same time. So that's the reason that he gets
away with making these objections --
BY MR. KIMBERLIN:
Q Did you on July 31st --
THE COURT: -- as opposed to the previous witness
that didn't get away with it because he was not representing
himself. He was representing by a lawyer even though he is a
lawyer.
BY MR. KIMBERLIN:
Q Excuse me on July 31st, 2013 did you say Brett
Kimberlin is a pedophile?
A I don't recall what I wrote on that date because I
have 78,500 tweets last time I checked. And since I'm a
digital marketing professional, what I want to explain to you
is that tweets aren't thoughts or blog posts onto themselves.
They're usually over a couple of minutes long. So it would be
an improper metric to assign a tweet, oh, someone's tweeted you
300 times, 100 times. That could be one thought, Mr.
Kimberlin. That's only a couple of words or a couple of
sentences, I'm sorry.
Q Did you have a blog talk radio last night?
A Yes, I did.
Q Did you call me a pedophile?
A No, I didn't. If you have evidence --
Q No further questions.
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A -- I would be willing to listen to it.
THE WITNESS: Okay.
THE COURT: Do you have any questions of this
gentleman?
MR. OSTRONIC: No, Your Honor, not now.
THE COURT: All right, sir thank you.
THE WITNESS: Thank you.
(Witness excused.)
THE COURT: Next witness.
MR. KIMBERLIN: Mr. Stacy McCain.
THE CLERK: Please raise your right hand.
STACY MCCAIN
DIRECT EXAMIANTION
BY MR. KIMBERLIN:
Q Mr. McCain, what would you consider your political
affiliation?
A My political affiliation?
Q Yes.
A I'm a conservative.
Q Would you say like Tea Party Conservative or moderate
conservative or what?
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A I'm a conservative.
Q So do you know what the Southern Poverty Law Center
is?
MR. OSTRONIC: Objection Your Honor.
THE COURT: What does the Southern Poverty Law Center
have to do with this case?
MR. KIMBERLIN: Well Mr. McCain has --
THE COURT: The Southern Poverty Law Center, what
does that have to do with this case?
MR. KIMBERLIN: Mr. McCain is considered a neo-
confederate --
THE COURT: Well --
MR. KIMBERLIN: And the Southern Poverty Law Center
is one --
THE COURT: Hold on a second. Counsel I appreciate
you objecting to my question but I'm not going to overrule
myself. That's not something I do. So what does the Southern
Poverty Law Center have to do with this case? I'm not asking
you about Mr. McCain, I'm asking you about why are you asking
him about the Southern Poverty Law Center?
MR. KIMBERLIN: I'm asking him the Southern Poverty
Law Center is the leading, one of the leading civil rights
organizations in the --
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THE COURT: I understand all of that but what does it
have to do with this case?
MR. KIMBERLIN: Because --
THE COURT: And the claim that you are making against
these gentlemen?
MR. KIMBERLIN: Because Southern Poverty Law Center
regularly outs racists
THE COURT: So what if they do. What does that have
to do with this case? This case isn't about racists or racism.
MR. KIMBERLIN: It's about hate. It's about hate.
These people hate me and they do anything to destroy me.
THE COURT: Well but why are you asking this witness
about the Southern Poverty Law Center? First of all he
couldn't testify as to anything they said or did because it
wouldn't be an exception to any hearsay rule. So you would
never be able to get that in evidence anyway.
BY MR. KIMBERLIN:
Q Mr. --
THE COURT: Your objection's sustained.
BY MR. KIMBERLIN:
Q Mr. McCain, do you have a blog?
A Yes.
Q Do you have a Twitter account?
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A Yes.
Q Did you ever publish a blog post -- first I'm going
to hand this to you.
THE COURT: What is that, Exhibit 23?
THE WITNESS: Yes.
BY MR. KIMBERLIN:
Q First of all can you read the title?
A The title is How to Get a Million Hits On Your Blog
In Less Than A Year.
Q Uh-huh. So let's just cut to the chase here. Point
number 4 --
A Point number 4, make some enemies.
Q Right.
A Point number 4, make some enemies. We'll have none
of your bipartisan civility around here you sissy weaklings.
This here is the inner tubes and we're as nasty as we want to
be. The fact that the moderate voice has turned into a
reliable vessel for DNC talking points should tell you all you
need to know about the fate of bipartisanship in the
blogosphere. At the same time however, don't confuse cyber
venom with real world hate. Maybe Ace of Spades really would
like to go upside Andrew Sullivan's head with a baseball bat.
I dont know. But at some point you understand it's just
blogging about politics. And you start wondering if maybe it
shares a certain spectator friendly quality with pro wrestling.
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For all we know Ace is spending weekends at Sully's beach shack
in Province Town.
A sense of humor, sir, is not a crime in this
country.
THE COURT: Defaming pro wrestling might be.
THE WITNESS: Hey Jessie Ventura sued somebody for,
you know --
BY MR. KIMBERLIN:
Q I just highlighted some things there in red, if you
could read those to the jury.
A Okay, let me see here. Is this from the same thing?
Q Same thing, yeah.
A No, it's not. Wait a minute, wait a minute, back
page. George frickin' Will should be airdropped into -- Easy
as it would have, okay, this is about --
Q Highlighted in red.
A Yes, I see. I see what you're asking me to read,
sir.
A couple of days ago hunting around for a reason to
link my friend Russ Smith's splice today I happened upon a
column by Russ's young minion Andrew Sargus Klein. There's the
set up. Anyway he was attacking me or something. Easy as it
would have been to ignore Klein I hit upon the delightfully fun
idea of laying into him Arkansas knife fight mode. If you're
going to cut a man, eviscerate him. So I quickly composed a
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hyperbolic ad homonym rant with the thoughtfully civil title
Andrew Sargus Klein is an arrogant elitist douche bag. I
forward dated the post for Friday morning and sent Russ and e-
mail to the effect of hey, hope you don't mind me abusing your
office help a little bit, nothing like a flame war to build
traffic. Don't let on to Klein that it's just funnin around
with him. I had hoped to bate Klein himself into a response,
however, before that could happen, as if intent on illustrating
how to make a fool out of yourself by taking this stuff too
seriously, one of Klein's friends offered up a comment.
And then it's --
Q Thank you. Now there's one other part of your how to
get a million hits -- and by the way does your blog have a tip
jar on it?
A Yes, it does.
Q So pretty much every time you post a blog you say hit
the tip jar or something to that effect?
A It's at the top of the page, hit the freaking tip
jar.
Q Okay, now under Number 5 --
A Rule 5.
Q Rule 5 --
A Rule 5, yes, thank you sir. Rule 5 this is what we
call the Christina Hendricks rule or Anne Hathaway or Natalie
Portman or Sarah Palin bikini picks. Rule 5 actually combines
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four separate principles of blogospheric success. A, everybody
loves a pretty girl. B, mind the mego factor. All politics
all the time gets boring after a while. Observant readers will
notice that the headlines at hotair dot com, a very popular
blog, by the way, often features silly celebrity tabloid stuff
and news of the weird. Even a stone political junkie like me
cannot subsist on a 24/7 diet of politics. The occasional
joke, the occasional hot babe, the occasional joke about a hot
babe, it's a safety valve to make sure we don't become humorous
right wing clones of those moon bats at democrat underground.
C, the one he wants me to ask. Sex sells. Back when
I was blogging to promote Donkey Cons, buy two, that was my
book I co-authored with Lynn Vincent, I accidentally discovered
something via site meter. Because the subtitle of the book is
Sex Crime and Corruption in the Democrat Party, we were giving
traffic from people googling donkey sex. You'd be surprised at
the key word combinations that bring traffic to a political
blogger who understands this. Human nature being what it is
the lowest common denominator is always there even if it's
sublimated or reverse projected as puritanical indignation.
MR. OSTRONIC: Objection, Your Honor --
THE COURT: What are you objecting to?
MR. OSTRONIC: I'm just objecting to the fact that
we're reading something for no apparent reason.
MR. KIMBERLIN: I didn't ask him to read that whole
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thing. I said read a little tiny thing.
THE COURT: Well you said C --
BY MR. KIMBERLIN:
Q So in other words make enemies and raise money and
use sex to do that.
A Everybody loves a pretty girl --
Q Yeah.
A Christina Hendricks.
Q Now you have used those things in your blogging about
me, I'm your enemy, right?
A Do you hate me with a passion, sir --
Q I'm saying you've created an enemy, right, is that
what you're saying?
A No, I'm saying that you attacked me.
Q And then --
A You attacked my family, sir.
Q My wife --
A You have sicced your friends on my family.
Q Please --
A Neal Rauhauser, who is Neal Rauhauser?
Q I don't know, but let's --
THE COURT: Ask a question, sir.
BY MR. KIMBERLIN:
Q Talking about family, you know my daughter, right?
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A No.
Q You don't?
A No, don't know her.
Q Well you certainly know that she's 15-years old,
right?
A You say.
Q You certainly know that she's got a music career,
right?
A You say.
Q My daughter --
THE COURT: This doesn't sound like it's going to be
a question.
MR. KIMBERLIN: It is going to be a question.
THE COURT: All right, what is the question?
BY MR. KIMBERLIN:
Q Did you write an article --
MR. OSTRONIC: Your Honor, objection.
THE COURT: Mark it.
BY MR. KIMBERLIN:
Q. Can you identify this article?
A No, no this is an altered version. This has material
that's extraneous to the article.
Q Did you write an article attacking a reporter named
Monica Hesse?
A Attacking --
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BY MR. KIMBERLIN:
Q Challenging --
THE COURT: The objection's sustained.
BY MR. KIMBERLIN:
Q Do you know Monica Hesse?
A I don't. I have never met her?
Q Do you know that she wrote an article about my
daughter in the Washington Post?
A No, she wrote an article about you in the Washington
Post.
Q Did you tweet that Monica Hesse works for a newspaper
that is hostile to the Washington Post?
A Yes.
Q Did you tweet that my daughter is a girl that can't
sing a lick?
THE COURT: What's the relevance of that, sir? You
are the party in this case --
MR. KIMBERLIN: I understand, Your Honor.
THE COURT: -- not your daughter.
MR. KIMBERLIN: Your Honor, these people --
MR. OSTRONIC: Objection to these people.
MR. KIMBERLIN: Okay, Mr. McCain wants to harm me --
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THE COURT: Hold on for a second. You are the party
in this case.
MR. KIMBERLIN: Right, and --
THE COURT: So I'll sustain the objection as to any
questions having to do with someone not a party in this case.
MR. KIMBERLIN: Well I just want to ask him if he
wrote this tweet.
THE COURT: Well you can ask him if he wrote that
tweet. He can answer that yes or no.
BY MR. KIMBERLIN:
Q Did you write that tweet, just that tweet?
A No, that's different than what I wrote. It's not --
THE COURT: What is that, is that number 20 what, 24?
All right.
THE WITNESS: Your Honor --
THE COURT: That's okay, it's not in evidence.
BY MR. KIMBERLIN:
Q How many times have you written posts about me?
THE COURT: When you say posts do you mean Washington
Post or posted on blogs?
MR. KIMBERLIN: No, blog posts.
THE WITNESS: Blog posts, blog posts. Well let's see
from March 17th to July 5th, 2012, I'm pretty sure I posted
daily, so that would have been 42. And I covered the lead up
to the trial involving yourself and Mr. Walker and then there
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was the situation with Mr. Hoge and Mr. Schmalfeldt. But what
I'm saying is that I covered the story as it's you know, been
newsworthy.
BY MR. KIMBERLIN:
Q So if I were to show you 782 tweets that you've
had --
A I would tell you that only six of those in your hand
that you're showing me were tweeted before you filed this
lawsuit.
Q Well if I were to ask you to look at these --
MR. OSTRONIC: Are these all one submission?
MR. KIMBERLIN: I'll put them in as one.
MR. OSTRONIC: -- documents as one, slightly altered.
BY MR. KIMBERLIN:
Q Now when you write blog posts, I'm going to show you
these and just ask you if these, if you recognize any of these?
A Yes, this is about Neal Rauhauser.
Q Does this come from your blog?
A I can't, I haven't investigated whether, wait a
minute, wait a minute. I haven't investigated whether these
are complete documents, okay. But this is about Neal
Rauhauser. This is about Neal Rauhauser and this is about your
association with Neal Rauhauser.
Q But these all, you have a blog, what's the name of
your blog, by the way?
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A The Other McCain dot com.
Q So when you say the other McCain what are you
referring to?
A My blog.
Q So there's not another McCain?
A What are you trying to say, sir? What I'm telling
you is that I don't know that you've produced the full post
accurately. But I'm telling you that those are four posts.
The headlines at least are related to four posts that I wrote
about your associate Neal Rauhauser.
Q Now you tied me to other people like Mr. Hoge has a
daily post called Team Kimberlin posts today where he says that
there's this giant team out there that's involved or something.
BY MR. KIMBERLIN:
Q You do the same thing in these particular articles --
THE COURT: Is this a question?
MR. KIMBERLIN: Yes, it is.
BY MR. KIMBERLIN:
Q Do you tie me to Neal Rauhauser?
A You've tied yourself to Neal Rauhauser. You told a
Maryland court that he is your associate. He has claimed you
as his client. Neal Rauhauser has represented your other
non --
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MR. KIMBERLIN: Objection, that's hearsay.
THE WITNESS: I'm answering the question.
THE COURT: Well it's your question, sir.
MR. KIMBERLIN: I know.
THE COURT: Yes, you can.
THE WITNESS: Thank you. Okay, Neal Rauhauser, you
stood in court and said that Neal Rauhauser is your associate.
He's attended multiple hearings where he was not a party that
you were involved in. Neal Rauhauser has described you as his
client. Neal Rauhauser represented himself as an agent of your
non-profit Velvet Revolution dot U.S. So he is your associate.
BY MR. KIMBERLIN:
Q And was Neal Rauhauser a defendant in the lawsuit
that Mr. Walker filed?
A I think he named him as a defendant.
Q So maybe that's why he was my associate?
A What?
THE WITNESS: Wait a minute.
THE COURT: No, no, that objection's sustained. All
right, next question.
BY MR. KIMBERLIN:
Q Now in your postings and your tweets have you ever
called me evil, the epitome of evil?
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A I don't know about the epitome of evil but I've used
the phrase evil to apply to you several times.
Q Uh-huh, and when you tweet, you tweet to the other
three defendants --
A I tweet to the, I tweet. You know, you post a tweet
to Twitter.
Q You post a tweet to Twitter, but you direct it.
A I cc lots of people on my tweets.
Q Yeah.
A Depending on who it might be of interest to.
Q And when Mr. Walker tweets he tweets to you, right?
A He sometimes cc's me on his tweets, yes.
Q And you've been on radio programs with Mr. Walker.
A I have.
Q You've been on Ali Akbar's radio program with Mr.
Walker.
A Yes, it was Mr. Akbar's program.
Q And you've been on radio programs with Mr. Hoge?
A He has been on Mr. Akbar's program.
Q And during those radio programs have you called me
evil?
A First, may I answer?
THE COURT: Sure.
THE WITNESS: Okay, the first thing is that those
radio programs were aired after you sued us. Do you understand
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that this can't be anyway relevant to the damages you're
claiming?
MR. KIMBERLIN: Your Honor, those radio programs --
THE WITNESS: October.
THE COURT: Well, youll get a chance to testify.
Ask another question. The question is has he ever called you
evil?
THE WITNESS: Sure.
THE COURT: He said he has.
BY MR. KIMBERLIN:
A Never.
Q Have you ever called me a sexual abuser?
A Never.
Q A wife abuser?
A Never.
Q Never?
A Never, I have not called you those things.
Q You consider yourself like a power blogger?
A I'm about a medium sized, as blogs go I'm about
medium size.
Q But you know how to get a million hits, a million
views.
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A My first year, in 2008 I resigned the Washington
Times. I went independent and the post you had me read from
there was in my first year I got a million visitors registered
by site meter on my blog. Thats success. I've since then my
total now is 16,000,000 visitors and I don't know it's over
20,000,000 page views.
Q So it's a pretty substantial blog, I mean
conservative blog, everybody knows Stacy McCain, the other
McCain.
A A lot of people know me.
Q Right, so when you blog something, when you direct
somebody else's blog, it carries weight, right?
A It depends. I mean you know, it depends, see readers
have their own interests, okay. And you know, my job you know,
as a writer is to figure out, okay A, what stories are readers
interested in and B, is this a story where my writing about it
might have an impact. Does it have a reader value? The writer
has to think in terms of reader value. I've always taught this
and when I was teaching seminars, think about the reader. But
yes, if I, if you're asking me if I link another blog, does
that help that blog. Yes, you know, whatever source, if I link
the New York Times I'm throwing them a certain amount of
traffic.
Q So --
THE COURT: Let me stop you here, sir. Right now I'm
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thinking about this jury. Let's give them a break.
MR. KIMBERLIN: I'm trying to get done.
THE COURT: Ladies and gentlemen, you can step out,
take a 10-minute break. You can step down, take a break.
THE WITNESS: I can take a break? Can we make it 15
minutes?
THE COURT: Sure. Please remember don't talk about
the case among yourselves or with anyone else.
THE COURT: Now counsel, come up, please. Mr.
Kimberlin come up.
THE COURT: How are we doing?
MR. KIMBERLIN: We're doing good. I'm going to try
to finish up with these guys and then call my daughter.
THE COURT: Now what is your daughter going to
testify to now that we've heard the defendants have all given
testimony. This one isn't finished, but they've all given
testimony. What's the purpose of you putting your 15-year old
daughter in the middle of this? What is she going to add --
MR. KIMBERLIN: She's already in the middle.
THE COURT: What is she going to add to this?
MR. KIMBERLIN: Well she's in the middle. They have
attacked, her online.
THE COURT: Well she's not a party.
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MR. KIMBERLIN: She's not a party, but it goes to
harm. And it goes to harm to me and it goes to malice.
THE COURT: Well you can testify about that.
MR. KIMBERLIN: Well I may not testify. I don't have
to testify.
THE COURT: Well I'm very seriously considering not
allowing a 15-year old child to be put in the middle of this
when nothing she has to say is relevant to what -- now if she -
- what you, it's not that another witness couldn't give
probative testimony in a case like this. That's not the case
at all. But what I'm saying is that what you're telling us
that your daughter will testify to isn't probative as to
whether these gentlemen defamed you.
MR. KIMBERLIN: It's probative to whether you know,
my wife --
THE COURT: Your wife's not a party.
MR. KIMBERLIN: No, but they're saying that, but
they're relying on my wife's statements or you know, the
pleading filed by Mr. Walker.
THE COURT: Well the answers to questions, that
information came in about your wife because of the questions
you asked.
MR. KIMBERLIN: I'm not saying that, you know. They
would have brought it in anyway.
THE COURT: Well but they didn't.
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MR. KIMBERLIN: Okay, but they're not done.
THE COURT: Well they might be.
MR. KIMBERLIN: Maybe they are, but my point is --
THE COURT: You're not understanding me, are you?
MR. KIMBERLIN: I do understand you and I believe
that my daughter has something to offer to this case. This
jury needs to see my daughter.
THE COURT: Why?
MR. KIMBERLIN: Why? Because I'm not a pedophile.
I've never been a pedophile. I've never touched these kids.
THE COURT: Hold on a second.
MR. KIMBERLIN: I've never touched her friends.
THE COURT: No one has alleged that you are a child
abuser which would be the case if indeed someone was involved
in some illicit behavior with his or her daughter. No one has
said that. That's not in this case, that's not been mentioned.
The word pedophile, yes. But no one has said --
MR. KIMBERLIN: Well if anybody would know that I'm
not a pedophile it's my 15-year old daughter.
THE COURT: Let me just tell you something, you're
going to tell me that kids know everything about their parents,
please.
MR. KIMBERLIN: No, I mean if I'm hitting on her
friends --
THE COURT: Your daughter doesn't --
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MR. KIMBERLIN: -- or something like that --
THE COURT: But no one is saying that.
MR. KIMBERLIN: Well that's what they said in their
little tweets, you know. We mean to take depositions from --
THE COURT: I mean to put your daughter up here and
her testimony is absolutely not relevant to whether Mr. Akbar,
Mr. McCain or Mr. Walker --
MR. KIMBERLIN: You say that I have to prove that I'm
not a pedophile.
THE COURT: I didn't say that.
MR. KIMBERLIN: Well that's what they said. That's
what --
THE COURT: Well whatever they say they can say that
but I didn't say that. I'm going to give the jury instructions
on defamation if we get that far.
THE COURT: And the jury instruction on defamation is
that, and I'll just tell you. The elements are that the
defendant made a defamatory statement to a third person.
THE COURT: That the statement was false. That the
defendant was legally at fault in making the statement and that
the plaintiff thereby suffered harm.
I don't see how anything your daughter has to say
goes to that --
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MR. KIMBERLIN: Well, in per se defamation which is a
crime, you know, you just have to show it's presumed harm.
THE COURT: Well but that's something different from
what your daughter will have to say and the case law says that.
MR. KIMBERLIN: So, you know, I really want her to
testify.
THE COURT: I know you want her to testify.
MR. KIMBERLIN: And I'm not going to --
THE COURT: -- But that's not the basis for receiving
evidence that the person wants it.
MR. KIMBERLIN: I'm not going to keep her on there
for very long. I'm not going to --
THE COURT: Give me a proffer of what she's going to
say that's relevant to the evidence in this case.
MR. KIMBERLIN: She will testify that my wife has had
some mental issues. And when I say that you know, based on my
wife's actions and --
THE COURT: Okay, assume arguendo --
MR. KIMBERLIN: -- number of and --
THE COURT: Let's assume they stipulate to that, what
does that have to do with this case?
MR. KIMBERLIN: Well because they're saying, their
whole basis for this case is that my wife told the truth.
THE COURT: Well you brought this case.
MR. KIMBERLIN: No, no, they're saying their whole
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basis for calling me a pedophile on year repeatedly for a year
and a half is that my wife made an allegation --
THE COURT: Do you know the witness you really need?
MR. KIMBERLIN: Huh?
THE COURT: Is your wife here?
MR. KIMBERLIN: She's packing. We're leaving on
vacation tomorrow.
THE COURT: Is she going to testify?
MR. KIMBERLIN: She's not going to testify.
THE COURT: If she was going to testify that would be
one thing, but a 15-year old?
MR. KIMBERLIN: No, you know, my wife had some mental
problems.
THE COURT: I don't mean to make you talk about your
wife.
MR. KIMBERLIN: And you know, I don't really want to
put her through this. She's been through so much already.
THE COURT: For the record the jury is not involved.
MR. KIMBERLIN: That's why my daughter has suffered.
She's been bullied because people have read what these people
have said and that jury needs to know that. They need to
know --
THE COURT: How are you going to prove that? How are
you going to prove that somebody that's at a high school
someplace said or did, especially you can't get that in
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evidence? And that it is because -- you know, I hear this
stuff all the time about children and not just in this case
about what causes kids to do something. And I've been doing
this a long time. So I'm sitting here wondering how can you
separate out what a teenager does, a 12-, 13-, 14-, 15-year old
teenager because of one incident or another, how can you
separate that from just the problems that teenagers have?
MR. KIMBERLIN: Well because when she's at school and
kids are saying wow, I read --
THE COURT: Let me stop you there. How can you get
into evidence what kids are saying?
THE COURT: That's rank hearsay. It doesn't fit
within any exception of the hearsay rule.
MR. KIMBERLIN: It's what, it's what, well I can ask
her what happened with her. In other words did someone say
something at school to cause you to be bullied or not to be
allowed to have any more sleepovers or not to be allowed to
come over to the house? Why?
THE COURT: What does that have to do with, let's
just pick Mr. McCain. What does that have to do with Mr.
McCain? First of all he never said you were a pedophile.
MR. KIMBERLIN: Mr. McCain attacked my daughter
mercilessly on blog posts.
THE COURT: There's no evidence that he said you were
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a pedophile. He's testified, the evidence is that he never
said that. That's his testimony, I never called you a
pedophile. He never said anything about you being a sex
abuser.
MR. KIMBERLIN: No, he used his blog to tie to their
blog.
THE COURT: See what you're doing is I ask you
questions and you want to give testimony. That's not what I'm'
asking. What I'm asking you is what is it that the witness is
going to say that is admissible that goes to the elements in
this charge, in these counts?
MR. KIMBERLIN: Well first of all the first one is
that they made a false statement. It's false that I'm a
pedophile.
THE COURT: Of course a daughter is going to come in
and say that her daddy is not a pedophile. That is the most
self-serving comment ever. It's like a mother comes in and
says my --
MR. KIMBERLIN: Let them come and attack her and
say --
THE COURT: I am not going to let anybody attack a
15-year old --
MR. KIMBERLIN: Well let them --
THE COURT: I am not going to let them attack a 15-
year old.
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MR. KIMBERLIN: Then let them do that in final
argument say oh she changed in front of dad, you know. But,
you know, she deserves to testify. She wants to testify.
These guys have caused our family you know, years of grief and
constant --
THE COURT: But you haven't, there's nothing before
this Court about damage to your family. That's what you're not
seeming to understand.
MR. KIMBERLIN: Well I have to show harm.
THE COURT: There's only two counts left to you, not
to your family, to you.
MR. KIMBERLIN: All right, fine, if they portray me
as a bad father which they've done, if they --
THE COURT: No one has said you were a bad father.
MR. KIMBERLIN: On yeah.
THE COURT: That's not in evidence.
MR. KIMBERLIN: All right, if they portray me as an
unfit father who's abusing my wife I mean Kelsie can testify
that I've never beat my wife.
THE COURT: She can?
MR. KIMBERLIN: Right, well but she's never seen me
abuse my wife.
THE COURT: No one says she has.
MR. KIMBERLIN: Well, but she's the person that lives
in the house. She sees us every day. She knows what kind of
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father I am. You know, this jury has a right to hear that and
and --
THE COURT: First of all I'm not going to allow her
to give any testimony about your wife's mental condition, about
any treatment, about any therapy. How is she competent to
testify about that? She's not. You didn't have an expert
witness to come in here and say he examined your wife and she's
suffering from X condition because of certain things that are,
any trauma that's related to anything these defendants did. So
that eliminates that bit of testimony.
What kind of a dad you are? First of all you haven't
put your character at issue.
MR. KIMBERLIN: They have.
THE COURT: You haven't.
MR. KIMBERLIN: They called me a pedophile.
THE COURT: You dont get to put in character
evidence like that, you know. If you get up on the witness
stand and say I would never do anything like that, putting your
character at issue, then you can call character witnesses. But
you want to call a character witness when you haven't said a
single thing about your character other than in opening
statement. This has nothing to do with you being pro se.
These are just plain rules of evidence.
THE COURT: That would be a neat way to try cases,
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just don't say anything, just bring in the community and say
what a great guy he is. What a great guy. He's really a great
fellow and then have the jury concentrate on that as opposed to
the witness him or herself whether it's plaintiff or defendant,
you know, so, that's the problem.
See the problem here is an evidentiary one. It's
not, I'm sure your daughter wants to testify. That's not how
the Court decides how to proceed. That's not how that's
determined. You really want to put a 15-year old kid in the
middle of this?
MR. KIMBERLIN: She's already in the middle. They
made her in the middle.
THE COURT: She's not in the middle of this case.
MR. KIMBERLIN: She's in the middle of it. They made
her in the middle. They've attacked her online. They've
attacked her music career. They've attacked her at school.
Well, okay, Mr. Walker, Mr. Hoge, Mr. McCain.
THE COURT: One person has never, when you argue to
the jury you can't say they because one of these defendants
said he didn't ever say anything about you being a pedophile so
he's out of that. This gentleman has said he believes you are
so whatever you want to say in response to him is up to you.
And the other gentleman has said that he has said that, but
they're all repeating what they've gotten from elsewhere, you
know. None of those people are the originators of any of these
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comments that apparently they have made. And there's no doubt
about the friction between you all, that's pretty, if there's
anything proven in that case is you all dont like each other.
MR. KIMBERLIN: Well it's defamation. It's not First
Amendment. You can't lie about somebody.
THE COURT: You know what, a fact can be anything.
What a fact is or what did somebody did and what you're proving
in court, see you want the jury to make a decision just because
you say it. That's not how it works.
MR. KIMBERLIN: I want them to make a decision
because of what they said. They called me a pedophile.
THE COURT: Well they've said that.
THE COURT: I mean you have used the word pedophile
in this courtroom today more times than anybody has.
MR. KIMBERLIN: Well, I know and --
THE COURT: You just keep using it over and over and
over again.
MR. KIMBERLIN: Because that's what they say and it's
a per se defamation.
THE COURT: But from a strategy point of view, do you
really want to keep saying that?
MR. KIMBERLIN: Well that's the nexus of this case.
And --
THE COURT: See this is the problem when people
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represent themselves. You can't take, you can't step back and
listen to how it sounds because you're in it.
THE COURT: It's kind of like you know --
MR. KIMBERLIN: Yeah, they said it how many hundreds
of thousands of times.
THE COURT: Only the times that you've asked them to
repeat it here in this courtroom.
MR. KIMBERLIN: No, I'm talking about online, you
know, and it gets repeated and repeated and repeated and then
other people pick it up and then other people pick it up and it
becomes viral, you know, that's the thing. So I would like to
put her on the stand.
THE COURT: Well, I'll allow you to put her on the
stand, but there's probably going to be a barrage of
objections. And if you try to elicit the type of testimony
you've told the Court that you're going to try to elicit, those
objections will be sustained.
THE COURT: And she can't give hearsay testimony.
She can give her, I mean what is she going to say about her
dad? And then the other thing you have to worry about is what
the jury is going to think of you putting a 15-year old on the
stand. You hadn't thought about that.
MR. KIMBERLIN: Yes, I have.
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THE CLERK: Do you have a proposed verdict sheet?
MR. KIMBERLIN: Proposed verdict sheet?
MR. OSTRONIC: No.
MR. KIMBERLIN: No.
THE COURT: Draft one. You know. Now what counts
are left?
MR. OSTRONIC: 3 and 4.
THE COURT: Counts 3 and 4.
THE CLERK: False light and defamation.
MR. OSTRONIC: Defamation and false light.
MR. KIMBERLIN: And you know another thing, Judge,
you know, we're not just talking about defamation, we're
talking about false light. You know they've presented me as
some kind of heinous monster that does all this terrible stuff.
THE COURT: Right now the only evidence in the case
is what they've testified to.
THE COURT: That's the only evidence in the case.
MR. KIMBERLIN: Right, and so for them to portray me
as a heinous monster, you know, that's false light. And it's
not just.
THE COURT: No one is disagreeing with what you're
saying. I'm just telling you what the evidence is so far is
only what they've testified to.
MR. KIMBERLIN: Well yeah, and I've asked to
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introduce these documents.
THE COURT: Well the documents have to come in
through somebody who can identify them. Several of these
documents people have said I can't identify them. And if they
can't identify them, they can't be authenticated. It can't be
authenticated, the whole idea --
MR. KIMBERLIN: Well but a lot of them they have
identified.
THE COURT: See, here's what probably surprised you.
These men didn't come in here and say they didn't say these
things. They came in here and said yeah I said that. You
don't have to prove that they said it. They testified that
they said it.
THE COURT: That's not the problem in this case.
MR. KIMBERLIN: So they said it.
THE COURT: A person says I believe you are first
president of the United States. The fact that you're not
doesn't have anything to do with whether he believes it.
MR. KIMBERLIN: I know but it's defamatory.
THE COURT: Okay.
MR. KIMBERLIN: Per se and that's the point. It's
defamatory and per se and you know, they can't say it without
facing the music. That's what they're doing.
THE COURT: Well you want to put your daughter -- are
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you going to testify?
MR. KIMBERLIN: No --
THE COURT: Okay.
MR. OSTRONIC: Your Honor, I just have to ask you a
question.
THE COURT: Hold on a second, yes.
MR. AKBAR: I want to question Mr. McCain, do go
after --
THE COURT: Youre not going to ask him any
questions. You can ask some questions.
MR. AKBAR: Is there an order?
THE COURT: Well if he doesn't ask any then you go.
Actually you're both standing on equal footing. There's no
protocol as to how you go. You're both defendants. Not him,
hes a lawyer. Okay -- now let me ask you something, Mr.
Kimberlin --
MR. KIMBERLIN: Yes.
THE COURT: -- dont want to have ex parte
communications. So she's your last witness.
MR. KIMBERLIN: Yes.
THE COURT: And I don't know, but I suspect they're
not going to ask her any questions, I mean --
MR. OSTRONIC: I'm going to waive my objections --
THE COURT: She's your daughter.
MR. KIMBERLIN: Okay, thanks Your Honor.
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THE COURT: Remain seated, please.
(Recess)
THE COURT: Thank you, have a seat, please. Bring in
the jury, please --
(The jury entered the courtroom.)
THE COURT: Were you finished with the witness?
MR. KIMBERLIN: Mr. McCain, I just had a couple of
other questions and I think Mr. Akbar wants to ask a few.
THE COURT: Okay, is that a real couple or a lawyer's
couple?
MR. KIMBERLIN: Real couple.
THE COURT: Okay, all right.
Sir, you can some on up, thank you. All right,
counsel, go ahead.
DIRECT EXAMINATION (Resumed)
BY MR. KIMBERLIN:
Q So we were talking about the way your blog works.
The article you've written or you take an article that somebody
else has written on another blog and you'll link your tweet,
link with somebody else and spread the word, get more traffic,
is that what I heard you say?
A You're saying when I link something or I tweet
something does it result in traffic to whatever I link, that's
true.
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Q And if somebody links to you does that result in more
traffic to your site?
A Certainly.
Q And when you link to other sites including the
defendants, it actually becomes like a viral situation, it
could go viral on the internet.
A Some things go viral.
Q And you're involved with another blog called Viral
Read, am I correct?
A In March of 2013 I was asked to become editor-in-
chief of a site called Viral Read.
Q And Viral Read have you published anything on Viral
Read about me?
A Yes, I have.
Q And on Viral Reed have you called me evil?
A I don't know that I have.
Q But you have on the Other McCain?
A Yes, that's my personal site.
Q And when you wrote the tweets and the post about
Monica Hesse was the whole reason for writing those tweets and
posts to attack her for writing a positive article about me?
MR. OSTRONIC: Okay.
MR. KIMBERLIN: I'm just trying to lay a foundation.
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THE WITNESS: Okay, my purpose if you're asking why
did I tweet to Monica Hesse? In 2007 she wrote an article
about you that was very positive and included if I recall
correctly exactly about two sentences about your criminal
record. And I felt that in July 2013 that the Washington Post
should cover the story that I was covering at the time.
BY MR. KIMBERLIN:
Q So when you wrote that post and I'd like for you to
just read it just from here to here.
THE COURT: Is it marked?
MR. KIMBERLIN: It's Plaintiff's Exhibits 24.
THE COURT: Plaintiff's 24.
BY MR. KIMBERLIN:
Q Just read there to there.
A The Washington Post is a disgrace to journalism that
employs hired liars like Monica Hesse. The Washington Post and
Monica Hesse are engaged in a conspiracy to conceal the truth
about Brett Kimberlin. In 2007 Monica Hesse did not tell the
truth about Brett Kimberlin. In 2013 -- wait a minute let me
get my glasses here, hang on a second. Okay, to finish. I'll
begin the sentence where I -- In 2007 Monica Hesse did not tell
the truth about Brett Kimberlin. In 2013 she will not tell the
truth about Brett Kimberlin. The truth about Brett Kimberlin
has never been printed in the Washington Post nor will it ever
be. No honest person would work for the Washington Post which
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publishes only evil lies.
Q Thank you.
A Would you like my opinion of the New York Times?
Q No, so are you aware of another article in the
Bethesda Gazette about me and my daughter?
A I don't know, is there a publication called the
Bethesda Gazette?
Q Or the Montgomery County Gazette or something to
that?
A There is a Gazette in Montgomery County, yes.
Q Are you familiar with another article that was
published last, I believe it was last year, two years ago about
me and my daughter?
A I'm aware that there was an article published about
you and your daughter in the Montgomery Gazette, correct.
Q And did you tweet about that at all?
A Someone tweeted to me about it.
Q And is that when you did the by the way that girl
can't sing a lick?
A Do you want to get the actual tweet in the record?
Do we want to know what actually happened?
THE COURT: Well --
THE WITNESS: Yes, okay.
THE WITNESS: They're his questions and he can ask
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whatever questions he chooses.
MR. OSTRONIC: Objection, Your Honor, if there is a
tweet out there can he bring it forward otherwise --
THE COURT: Well --
MR. OSTRONIC: I'm sorry.
THE COURT: He can ask a question if he wants and you
can bring whatever tweet you want to bring up as long as we
don't get too tweety here.
THE COURT: Okay, my reaction to a tweet that
somebody tweeted the article to me, my reaction was
creeptastic. By the way that girl can't sing a lick.
BY MR. KIMBERLIN:
Q Okay, and then did you also tweet that perhaps have
Strahan and ask W. J. J. Hoge can you communicate facts to
hired liar Monica Hesse?
A Did I tweet that? Are you showing me a tweet?
Q I'm showing you this --
A Okay, let me state for the record that this is not,
what this is from, this, cannot I make the point. This is from
the site Breitbartunmasked, do you agree?
Q I'm just asking a simple question.
A No, no, you're showing me something from another site
that you are accused of owning.
Q No, I'm asking a simple question, did you tweet --
MR. OSTRONIC: Your Honor, I'll object. It's an
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unauthenticated document.
MR. KIMBERLIN: No further questions for this
witness.
THE COURT: Any questions?
MR. OSTRONIC: No questions, Your Honor.
MR. AKBAR: Can I use this desk?
THE COURT: Sure, well sir you, yes --
CROSS-EXAMINATION
BY MR. AKBAR:
Q You've got a colorful personality, don't you?
A Some people might say.
Q Are you a racist?
A No.
Q Do you come from a white only family?
A No.
Q Do you associate only with white people?
A No.
Q Okay, is the National Bloggers Club --
MR. KIMBERLIN: Your Honor, I object to that.
THE COURT: You object to whether he associates only
with white people.
MR. KIMBERLIN: Called him a racist.
THE COURT: Well associating only with white people
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isn't a crime, but overruled, go ahead.
MR. KIMBERLIN: Okay, overruled.
BY MR. AKBAR:
Q Have I ever told you to write any lies about Brett
Kimberlin?
A No.
Q Has the National Bloggers Clubs or any of its
directors or members told you to write about, lies about Mr.
Kimberlin?
A No.
Q How many people attend based off your observations,
the events that the National Bloggers Club throws?
A Hundreds.
Q And have you won awards from the National Bloggers
Club?
A Yes, I have.
Q Can you tell the jury the process by which you and
Mr. Hoge as he testified won awards?
A They were voted on by our peers.
Q Not by any party's sole discretion here?
A No.
Q Okay, before blogging, what did you do for a living?
A I was, well my most, I'm a newspaper writer.
Q Are you familiar what libel is?
A Yes.
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Q And what is your capacity to tell us that you know
what libel is or isn't?
A Well --
MR. KIMBERLIN: Your Honor, that's a legal question.
THE COURT: Your objection?
MR. KIMBERLIN: That's a legal question.
THE COURT: It's not a legal question as to whether
he knows that it is. It would be a legal question if he asked
him to define it. But he's asking him from his point of view
what it is. He can do that.
THE WITNESS: I was a reporter, an editor, a
columnist and you know, spent decades with the AP style book
and libel manual on my desk. I edited other people's work. I
wrote articles. You know, I had editors over me and knowing,
you know being able to spot something that was potentially
libelous, you know, an article in fact checking articles and
making sure that we did not libel somebody that was part of my
job.
BY MR. AKBAR:
Q Are there any facts or sources that have talked to
you that you haven't published on the internet, knowledge about
Mr. Kimberlin?
THE COURT: Are there any, say that again. Are there
any?
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MR. AKBAR: Sources or evidence that he knows about
related to Mr. Kimberlin that he hasn't shared with the public.
THE COURT: That he has not --
MR. AKBAR: Yeah, I'm talking --
THE COURT: Overruled, he can answer that.
THE WITNESS: Yes, yes, no, I talk to a lot of
sources. I've investigated a lot of things.
BY MR. AKBAR:
Q Do you have a high regard for the truth?
A I do.
Q So you're not a fly by night basement blogger?
A No, I don't have, well we've got a basement but I
don't blog in it.
Q The first question that Mr. Kimberlin asked you was a
post that you had, how to get a million hits. When was that
written?
A It was written in, was it March of 2009? I think it
was in March. It was February or March of 2009.
Q Had you heard of Mr. Kimberlin?
A At that time, no.
Q Does that post have anything to do with Mr.
Kimberlin?
A No.
Q Not rule 5, rule 4, whatever it is?
A None of it.
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Q Okay, last question, what's your primary source of
knowledge about Mr. Kimberlin?
A Let's see, okay. The book, Citizen K by Mark Singer,
his authorized biography.
Q Is this a published book?
A The Indianapolis Star, court documents, and Time
Magazine and other journalism, you know --
Q Are any of these cites bloggers?
A No.
Q Are any of these sites controlled by any of the
defendants here?
A No.
Q Okay.
MR. KIMBERLIN: Redirect?
THE COURT: You can redirect.
REDIRECT EXAMINATION
BY MR. KIMBERLIN:
Q Mr. McCain have you ever been accused of being a
racist?
A Yes.
Q Okay, who's accused you?
A A guy named George Archibald who got fired from, well
he didn't get fired. He quit and didn't get rehired and became
angry and the last time I heard of him he was at the bottom of
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a bottle, an alcoholic. And he became disgruntled at my
editors. And as part of that he accused me of being a racist.
Q So that had nothing to do with you leaving the
Washington Times?
A No, I resigned in January 2008 because I had a
freelance project that involved a trip to Uganda.
Q Have you ever been identified as a member of the hate
group League of the South?
THE COURT: I'm sorry, what was that, what group?
MR. KIMBERLIN: League of the South.
THE COURT: League of the South?
MR. KIMBERLIN: It's like an offshoot of the KKK.
MR. KIMBERLIN: It believes in --
THE COURT: What's that relevant to, sir?
MR. KIMBERLIN: Well he brought it up.
THE COURT: He didn't bring up the League of the
South?
MR. KIMBERLIN: Huh?
THE COURT: He didn't bring up the League of the
South.
MR. KIMBERLIN: He talked about he's not a racist.
THE COURT: Well the fact that he brought it up
without objection doesn't make it relevant. I mean what is the
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jury going to do with this? We're not here about whether
anybody is a racist or not, are we?
MR. KIMBERLIN: Well no, but he's tried --
THE WITNESS: You're white by the way.
THE COURT: Hold on a second. Hold on a second.
MR. KIMBERLIN: He's trying to rehabilitate the
witness by coming up here and saying oh, you know, you're not
some extremist. You're not --
THE COURT: Hold on a second, hold on a second. I've
got this, okay.
MR. OSTRONIC: Sorry, Your Honor.
THE COURT: Go ahead, finish what you're saying.
MR. KIMBERLIN: And I think you know, the evidence is
pretty clear that Mr. McCain and his history has engaged in a
lot of rhetoric. He can call it hyperbole or whatever about
whites and blacks and not being able to live with each other,
intermarry, things like this.
THE COURT: So?
MR. KIMBERLIN: So, I'm' just saying.
MR. OSTRONIC: I'm going to object, Your Honor. It's
not in evidence.
MR. KIMBERLIN: It's not in evidence. I'm trying to
get it in evidence.
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THE COURT: Well, we started this case off --
MR. KIMBERLIN: Anyway ---
THE COURT: -- talking about the First Amendment. So
what if he did that.
MR. KIMBERLIN: So --
THE COURT: I mean that doesn't have anything to do
with this case.
MR. KIMBERRLIN: No, it doesn't.
THE COURT: Does it?
MR. KIMBERLIN: No, it doesn't, other than the fact
that he's saying he's not a racist. He's the one that asked
that question.
THE COURT: He being?
MR. KIMBERLIN: Mr. Akbar, he came right up and said
are you a racist?
THE COURT: And then he said no.
MR. KIMBERLIN: He said no. And so all I'm saying is
have you ever been called racist? You know has the Southern
Poverty Life Center found that you're racist? You know, have
you been featured on Hate Watch --
MR. KIMBERLIN: -- because you're a racist? You know
this is what I'm trying to get at and --
THE COURT: Well but my problem is that I don't know
what that has to do with this case. It's you're the plaintiff.
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If everything you said were true, so what. It doesn't have
anything to do with this case.
MR. KIMBERLIN: Well let's get back to what Mr. Akbar
asked, you know.
BY MR. KIMBERLIN:
Q You've been around. You know about libel. You copy
editor, publisher, all that stuff, you know the fine line and
you testified that you haven't called me a pedophile.
A I have not called you a pedophile. Have you got any
evidence you want to show the jury that I ever called you a
pedophile? Go ahead, show it right now, here.
Q Okay, so the next question is if somebody called
somebody a pedophile would that be libelous?
A Would that be libelous? If the person was, if it's a
matter of opinion it's not a word that I have used.
Q I'm not asking --
A That's the point.
Q I'm trying to give you some credit here. You're a
smart editor. You're a newspaper editor. You know the fine
line between what's acceptable --
A So what you're --
Q -- and what's not. So I'm trying to get you to tell
this jury why you didn't use the word pedophile and all these
guys did?
A Well because I suppose because long years of
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experience and it was not necessary to use the word pedophile
in order to make the point. Let the readers draw their own
conclusion by citing the book, Citizen K; to cite articles in
the Indianapolis Star; to cite other evidence you know, that
was relevant to the thing. In other words, you report the
facts and let people make up their own minds. It's not my job
to tell people what to think about you. I tell them the facts
and they make up their own mind. See this is the great thing
about the blogospheres.
You know 15 years ago before, you know, the internet
and the blogosphere and stuff like that, if the Washington Post
and the New York Times and the ABC, NBC, those people didn't
want to report a story most people would never hear about it,
right? And if you, you would publish something okay, and maybe
it didn't make an impact. But now if the Washington Post
publishes something that is for instance the Monica Hesse story
that is incomplete, other people including average people,
average people that have no special qualifications, okay, if
they see part of the story that's missing, okay, they can say
look here, here's what Monica Hesse didn't report. And why
isn't Monica Hesse reporting this? What is the cause of Monica
Hesse's bias?
My criticism of the Washington Post is that they
didn't report very important things about you, sir. And these
are, and other people might read if they've read the same
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things that I have read. If they read the same things that
other people have read, they might use the word pedophile. And
whether or not that would constitute defamation is a matter of
law. But they didn't just make it up out of whole cloth, sir.
There are facts involved in the story. I'm covering a story,
don't you see? The story that I originally began covering was
the conflict between you and Mr. Walker.
Q Okay.
A Do you know why I was covering that? Because it
involved Neal Rauhauser. You brought up Neal Rauhauser here,
sir. Neal Rauhauser was notorious as someone who was harassing
people online. And there were people online who were trying to
report about this story that were getting harassed. I was
covering that story.
Q But that's all fine and dandy, but you know, the
point is, you, Mr. Publisher, copyright editor, Washington
Times, great reporter, award winning this and that knew you
better not use that word pedophile. You better not use that
word pedophilia. You knew it and --
THE COURT: Is this going to be a question?
MR. KIMBERLIN: Yes.
BY MR. KIMBERLIN:
Q So you were careful. But you linked to these guys.
A Linked?
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MR. OSTRONIC: Objection, leading.
BY MR. KIMBERLIN:
Q Did you link --
A Have I linked to other blogs? I've linked to other
blogs.
Q Have you linked to these guys?
A Have I linked?
Q To their blogs, to their Twitter accounts --
A Have I linked?
Q About me?
A Well when they were covering your hearings, they were
covering the trials there were hearings at which they were the
only witnesses who were writing about them. I linked to that.
Q So, let's give a little hierarchy here.
THE COURT: Ask another question.
MR. KIMBERLIN: Another hierarchy here.
BY MR. KIMBERRLIN:
Q You've got, they've got blogs and then you've got a
blog. And in terms of hierarchy their blog is where on the
scale and where is yours?
A You know, I'm not here, you know, what does that
matter?
Q Well, it matters because --
A I have more traffic than their blogs do, is that what
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you're saying?
Q Yes, exactly.
A Okay.
Q You have a lot more traffic than their blogs.
A I've got more traffic than your website.
Q Well, I'm not --
A Did he actually -- Mr. Hoge has more traffic than
your website.
Q Whatever, I'm not asking that question. I'm asking
you --
A Well what are you asking me?
Q I'm asking how the relationship between you and these
three defendants works as far as the internet so that the jury
understands that when they write a story --
BY MR. KIMBERLIN:
Q. -- and they write to you --
THE COURT: Wait a second.
BY MR. KIMBERLIN:
Q -- or you write a story and link to them that it's
just it's as if you wrote that story because you're all in it
together.
THE COURT: I'll sustain the objection. It's
argumentative. Anything else?
MR. KIMBERLIN: No further questions for this
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witness.
THE COURT: Anything?
MR. AKBAR: Can I do one recross?
THE COURT: Okay.
RECROSS EXAMINATION
BY MR. OSTRONIC:
Q Mr. McCain of everybody in this room right now, who
would you say is your closest friend?
A Ali Akbar.
Q Thank you.
MR. OSTRONIC: That's all I have, Your Honor.
MR. AKBAR: May I recross?
THE COURT: Sure.
BY MR. AKBAR:
Q So Mr. Kimberlin tried to impeach you, impeach and
say you weren't an expert on libel and just said for you, tried
to assert that everybody who has ever used the P word is
somehow now guilty of defamation regardless of what this jury
decides, is that what you saw?
A I don't know. It looked like he was trying to use me
to attack you guys.
MR. AKBAR: Your Honor, I would like to enter this
into the record book.
THE COURT: You have to have it marked. And if you
don't want to mark the book, mark that bookmark so that the
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book isn't defaced.
MR. AKBAR: All right.
MR. KIMBERLIN: Your Honor, I'm going to object to
any --
THE COURT: Well it hasn't been offered yet. Let the
clerk mark it. Mr. Clerk would you mark that.
MR. AKBAR: Shall I approach them first?
THE COURT: Sure, well mark it first.
MR. AKBAR: Okay. May I approach the witness?
THE COURT: Sure. BY MR. AKBAR:
Q Are you pretty familiar with this book?
A Very familiar.
Q How many times have you read it?
A While in preparing for trial I've read through it
three or four times certainly.
Q Now I'm going to skip along and I'm going to save Mr.
Kimberlin embarrassment or I'll try unless this gets objected
to you. How many underage girls or teenage girls are
referenced in their in having a relationship with Mr.
Kimberlin?
MR. KIMBERLIN: Objection, this book, the author of
this book is not here. This book is hearsay and there's no way
that I can object to this.
THE COURT: Well you just did.
MR. KIMBERLIN: I mean that I can you know, cross
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examine anything this books says.
THE COURT: Any response to that?
MR. AKBAR: I would argue that this is a part of,
this is a book that has not been discredited. Mr. Kimberlin
cooperated with this book. He has not sued the book author and
been successful in trying to take this book apart. This book
has quotes from principally him as to his relationship that's
unique to him inside of it. And this book has been widely
read. It's widely available. You know, the credibility of the
author is not in question. I just want to reference the book
that Mr. Kimberlin is familiar with.
MR. KIMBERLIN: Your Honor, Mr. Akbar doesn't know
what he's talking about. The author in this case, Mark
Singer --
THE COURT: Well you don't have to say that. The
problem here is that it's not that the book would not be
admissible. It's that it wouldn't come in through this
witness. So I'll sustain the objection.
MR. KIMBERLIN: Exactly, thank you.
BY MR. AKBAR:
Q In your reading of the book how many girls 18 or
under are referenced in having a relationship with Mr.
Kimberlin?
A Three.
Q Has anyone else read this book other than you?
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A Many people.
Q To your knowledge who in this room owns a copy of
this book, your personal knowledge?
A You, Mr. Hoge, Mr. Walker.
Q Are those the three people who are accused of using
the P word in relation to Mr. Kimberlin?
A Yes they are.
Q Okay, now here's the kicker. Did anybody to your
knowledge use the P word before his wife accused him of it?
THE COURT: For the record, you have to say what the
P word is --
MR. AKBAR: Pedophilia, pedophile.
THE WITNESS: No.
BY MR. AKBAR:
Q So everyone knowing that he had strange relationships
with little girls didn't even say that he was a pedophile until
years or a year later when his wife called him one.
A Well I dont know that she called him a pedophile,
but she filed charges of third degree sex --
Q Did you have a conversation with her about the age
she was when she had sexual intercourse?
BY MS. AKBAR:
Q Are you aware of the charges that she pressed against
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him?
A Yes.
Q What was the charge?
A Sexual assault, third degree.
Q Are you aware of any details in that report as a
journalist who --
BY MR. AKBAR:
Q Your oldest daughter, is she married to a white guy?
A She's married to an Argentine.
MR. KIMBERLIN: I have a couple of questions.
THE COURT: Okay.
MR. KIMBERLIN: Sorry.
FURTHER DIRECT EXAMINATION
BY MR. KIMBERLIN:
Q That book that was referenced, none of those quote
relationships had anything to do with sex did they?
BY MR. KIMBERLIN:
Q Do you know what the result of the charges that were
filed by my wife were?
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A She left the State and dropped the charges.
Q So you don't know whether or not they were nolle
pross?
A I've been told that. I've heard that here today.
Q Okay, and was there any investigation of that, of
those charges by anyone that you know of?
BY MR. KIMBERLIN:
Q Did you write any article or did you see any article
by any of these men, defendants after those charges were
dropped that said that they were nolle pross?
A I don't know what I saw. I mean you know, I read a
lot of articles obviously --
Q But did you write a story saying gee, Brett was
falsely accused and my God I'm so sorry.
A You weren't falsely accused.
THE WITNESS: Noll pross does not mean you were
falsely accused. I've had traffic tickets that were noll
pross. That didn't mean I wasn't going 85 miles an hour.
BY MR. KIMBERLIN:
Q But there's no conviction for pedophilia.
A Pedophilia is not a crime.
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Q What is pedophilia?
A Pedophilia is a sustained pattern of sexual, deviant
sexual interest in minors.
Q Minors, what do you define as a minor?
A Someone under the age of, well it could be under the
age of 17. It depends on the state and the, you know, the
charges involved. But it has to do with a persistent pattern
of interest, okay. It's not just one off, okay. In other
words that it's possible that for example, I'll give you an
example. Is that the director Roman Polanski was accused of
having sexual relationship with you know, sexual activity with
a 13-year old girl, okay. But this was one incident. Now this
has been very controversial. It's been debated in columns, in
articles and stuff like this, the Roman Polanski case. You
know Whoopi Goldberg on The View said it's not rape rape and
that created a big controversy because it was statutory rape.
But the question is has it been a repeated pattern?
Has Roman Polanski been linked romantically to other underage
girls and I don't know that he has.
Q So you're justifying the label of pedophile because I
had --
A You asked me for the definition of pedophile. I just
gave it to you.
Q But I'm trying to get to the nitty gritty here, you
know. I married my wife. I had sex with her. I had two kids
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with her.
A No, you don't.
MR. OSTRONIC: Objection, Your Honor. He's
testifying now.
THE COURT: Well I'll sustain the objection. You
can't ask questions. Was that going to be a question?
THE COURT: All right, thank you, you can step down,
sir.
(Witness excused.)
MR. KIMBERLIN: I'll call my daughter.
THE COURT: Is she your last witness?
MR. KIMBERLIN: Yes.
KELSIE KIMBERLIN
DIRECT EXAMINATION
BY MR. KIMBERLIN:
Q Please state your name.
A Kelsie Kimberlin.
Q Kelsie Kimberlin, how old are you?
A 15.
Q You're my daughter, right?
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A Right.
Q Do you have a music career?
A Yeah, I do. It's in Nashville, Tennessee basically
and --
Q Speak up, speak up a little bit.
A It's in Nashville, Tennessee. I work with a guy
named Bernard and a bunch of other people and Denise, I have a
lawyer. And Taylor Swift has been involved with me and she's
been tweeting some of my videos, so --
Q So are you considered like a child prodigy? I mean
you play multiple instruments?
A Yeah, I play banjo, guitar, ukulele, piano and I also
have a You Tube that has over half a million hits.
Q And so in your capacity as a musician, who's been
your producer?
A You.
Q And you just mentioned that you're represented by
attorneys in Nashville. Have you been to Nashville?
A Almost every single month.
Q And have you had showcases in Nashville?
A Yeah, about every year.
Q And so you've got a lot of notice from big people in
the industry?
A Yes.
Q Now you said Taylor Swift tweeted your first video.
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A Yeah.
Q And what happened when that happened? Did your video
go viral?
A It was already pretty big but it got even bigger, if
that explains it.
Q Okay, now last year you or let's just go back a
little bit. 2008 you were working with your Children's Choir.
What was the name of that choir?
A Harmonic Angels.
Q Harmonic Angels. And Yoko Ono was involved with a
peace project and how did you get involved with her in a peace
project?
A Well I basically sent out, well I basically joined
this thing called Legos and I wrote something about, to like
earn money. Let me explain this better, okay. So it started
out with I joined the choir and then my dad helped out and we
worked with his non-profit and others to get young people
involved with music and voting and to like stop the war. And
so then we all sang a song and then I wrote like a letter to
this company called like Legos and then I got a lot of money
from them like $5,000 for it.
Q Let's just step back, was it called the Creative
Nation Award?
A Yes, sorry, I forgot the name.
Q So you submitted something for the Creative Nation
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Award prize. And what was the top prize?
A It was the $5,000.
Q $5,000, and who won that prize?
A Me.
Q When you won that prize did the Washington Post write
about it?
A Yeah.
THE COURT: Just for the record, you're answering a
question affirmatively just say yes.
THE WITNESS: Yes, okay, sorry.
THE COURT: All right, thank you.
MR. KIMBERLIN: She's a teenager. I'm just going to
-- I'm going to show you Plaintiff's Exhibit 26. BY MR.
KIMBERLIN:
Q Does that look familiar?
A Yeah.
Q And so --
A Yes.
Q Yes, so this is article talking about and it was
written by who is that?
A Monica.
Q Monica Hesse, right? And how old were you when this
happened?
A Well 8.
Q You were 8.
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A Well 2008, 8.
Q And you got $5,000 top prize. Tell me what did you
do with that money? Just spend it on clothes or --
A I spent it on my music to learn piano and guitar and
get better at singing.
Q And did you take lessons from the International
School of Music?
A Yes.
Q And are you still taking lessons?
A Not from the International School of Music, but now I
have my own private teachers that come to my house and work
with me.
Q. Okay, and so you love music, right?
A Right.
Q It's your life, right?
A Yes.
Q Dad helps with that, right?
A Yes.
Q How often do you spend in the studio?
A About 10 hours a week or more.
Q Now about 2 years ago you had an opportunity to go
off to camps all summer. What did you choose to do?
A I chose to stay at the studio and work on my career.
Q Now a couple of years ago a girl died, was killed.
Her name was Rose.
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A And Liz.
Q And her friend Liz, can you tell the jury about that?
A Well actually --
THE COURT: Counsel, hold on a second, sir. What's
the relevance of this?
MR. KIMBERLIN: I'm getting there, just take me a
minute. I just want her to explain.
THE WITNESS: So I have a friend name Emma who had a
cousin named Rose and Rose's best friend was named Liz. And it
was in Baltimore Ellicott City and by the train tracks and coal
buried them and they got killed. And so --
BY MR. KIMBERLIN:
Q And the train derailed --
A Yeah.
Q -- and the coal came and --
BY MR. KIMBERLIN:
Q So did you do anything as a result of that?
A So I wrote a song about it and it got picked up by
someone and they wanted to write an article about it.
Q What was the name of the song, do you remember?
A I don't even remember?
Q Diamonds Forever?
A. I have too many.
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Q Diamonds For Her. And so the local paper picked it
up, the Gazette, is that right?
A Yeah, yes.
THE COURT: To him leading the witness, sustained.
MR. OSTRONIC: Your Honor, this is nothing that the
Defense was given. This is not a copy of anything the Defense
was given in discovery.
THE COURT: All right, mark it. Consider it as an
objection, overruled.
BY MR. KIMBERLIN:
Q Can you read the title to the jury?
THE COURT: What is it?
MR. KIMBERLIN: It's a --
THE COURT: Well no, you're not the witness. What is
that?
BY MR. KIMBERLIN:
Q What is that?
A Well it says Video --
THE COURT: No, no, is it a newspaper article or
wedding invitation, what?
THE WITNESS: It was a newspaper article that someone
wrote on me.
THE COURT: Okay.
THE WITNESS: And that so it says Video from local
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singer Kelsie Kimberlin, 50,000 views on You Tube, keep going?
BY MR. KIMBERLIN:
Q Tell me did anything happen after that article came
out? I mean you were proud of that article and --
THE WITNESS: I don't remember his name, because but
I do know he's the one right there in the tie.
THE WITNESS: And I know --
THE COURT: Objection is sustained.
THE WITNESS: I know that he --
THE COURT: The one right there in the tie there,
three people, four, in this room with ties on.
THE WITNESS: The red one.
BY MR. KIMBERLIN:
Q So did you read a tweet from Mr. Redland --
BY MR. KIMBERLIN:
Q This tweet, did you ever read that tweet?
A Yeah, he said I couldn't sing and then basically,
then later on him, he went on my article and he trashed it.
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BY MR. KIMBERLIN:
Q So you got a bullying --
BY MR. KIMBERLIN:
Q Did you get a lot of bullying --
THE COURT: Sustained. Counsel, sir, stop leading
the witness.
MR. KIMBERLIN: Okay, I tried to ask her if anything
happened --
THE COURT: What is the relevance of this to your
cause of action against these gentlemen? Assume for argument
purposes that she answers this question yes, what does that
have to do with you and what they allegedly did?
BY MR. KIMBERLIN:
Q Now you've had a lot of success with your music --
THE COURT: Are you going to answer me or not?
MR. KIMBERLIN: Oh --
THE COURT: What does that have to do with this case?
What happened to your daughter if it happened to her, and she
said it did, but so what does that have to do with your cause
of action against these --
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MR. KIMBERLIN: The relevance is that the defendants
and their blogospheres --
MR. OSTRONIC: Objection to the word defendants, Your
Honor.
THE COURT: Well overruled, go ahead.
MR. KIMBERLIN: The National Bloggers Club defendants
swarmed --
MR. OSTRONIC: Objection. Its a non-party.
THE COURT: You have a continuing objection under the
rule. That means that you don't have to keep saying it.
MR. OSTRONIC: Yes, sir.
THE COURT: Yes, go ahead.
MR. KIMBERLIN: The National Bloggers Club bloggers,
the Tea Party National Bloggers Club bloggers swarmed my
daughter's article.
THE COURT: All right, assume arguendo they did, what
does that have to do with your cause of action against these
gentlemen that you have sued?
MR. KIMBERLIN: It has to do with harm. It has to do
with malice.
THE COURT: Well I understand what it has to do with,
but specifically exactly two wit what did what they did, if
they did it have to do with her? Assume arguendo that let's
say for purposes of this question that was what was written
wasn't very nice. What does that have to do with your case?
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BY MR. KIMBERLIN:
Q Now Kelsie, at school, what school did you go to two
years ago?
A I went to Pyle Middle School.
Q And then what school did you go to last year?
A BCC Chevy Chase High School.
Q And what school are you going to, I don't want you to
mention the name, but are you going to another school this
year?
A Yes.
Q Is there a reason that you've gone to these different
schools?
A Yes.
THE COURT: Come up here.
THE COURT: I've asked you this question, what does
that have to do with the cause of action that you have filed
claiming that you, not your daughter, you were defamed and that
you were shown in a false light? Now if she were a party and
was alleging that they had said things about her that would be
one thing. But what does she have to do with this?
MR. KIMBERLIN: She was bullied.
THE COURT: Come up. Let's assume everything you say
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is true, what does have to do with what you have filed in your
lawsuit? You just can't bring in anything you want to bring in
because --
MR. KIMBERLIN: Because these guys defamed me and
said I was a pedophile and then --
THE COURT: Okay.
MR. KIMBERLIN: And it went down to her and caused
her problems.
THE COURT: But you have no cause of action for that.
That's the problem.
MR. KIMBERLIN: I'll say away from --
BY MR. KIMBERLIN:
Q Where is your mom today?
A She's at home packing for Hawaii.
THE COURT: Im sorry, at home packing?
THE WITNESS: Yeah.
BY MR. KIMBERLIN:
Q. Leaving on vacation tomorrow?
A. Yes.
Q Who is going?
A The whole family.
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Q Who is the whole family?
A Dad, mom --
MR. OSTRONIC: Your Honor, can't hear.
BY MR. KIMBERLIN:
Q Speak up.
A Dad, mom, me, Mr. --
THE COURT: They're going on vacation tomorrow.
BY MR. KIMBERLIN:
Q And where are we going?
A Hawaii and California.
Q Okay. Do we take a lot of vacations as a family?
A Yes.
Q Do you love your mom?
A Yes.
Q Has your mom ever done anything hurtful to you?
THE COURT: Has your mom ever done anything hurtful
to you? Sustained.
THE WITNESS: As in hurtful do you mean like --
MR. KIMBERLIN: He said objection, you can't talk
about it.
THE WITNESS: Oh, oh, I didn't know that.
BY MR. KIMBERLIN:
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Q Your mom, is your mom better now?
MR. KIMBERLIN: I'm going to show you guys some
pictures.
THE WITNESS: Wait to be clear, so if they say
objection, I can't answer the question.
THE COURT: That's right.
THE WITNESS: Okay.
THE COURT: Just like on TV.
THE WITNESS: Okay.
BY MR. KIMBERLIN:
Q What's that show you watch?
A Drop Dead Diva.
Q Drop Dead Diva.
MR. OSTRONIC: Your Honor, this is a general
objection, these were not provided to us in --
THE COURT: Just mark them as a group and put a clip
on them.
MR. OSTRONIC: And Your Honor, could I also just ask
if it's being brought in as evidence that it be date -- we also
learn the date of the photographs instead of just photographs.
(The photographs referred to were
marked as Plaintiffs Evidence No. for identification.)
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BY MR. KIMBERLIN:
Q I just want you to look through these pictures here.
Is that your mom?
A Yes.
Q You?
A No, that's Karina, dad.
Q And who is Karina?
A My sister.
Q How old is she?
A She's 10.
Q Is she in the courtroom?
A Yeah.
Q Where?
A Right there.
Q Okay, and is your grandma in this picture?
A Yes.
Q And is she in the courtroom?
A Yes.
THE COURT: Do you have any objections to these
pictures?
MR. AKBAR: Yes, Your Honor.
MR. OSTRONIC: We have an objection based on the fact
they weren't part of discovery.
THE COURT: You don't object to the authenticity, do
you.
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MR. OSTRONIC: I don't object to the authenticity per
se, but all I'm saying is it would be nice if we had the date
on there. If she said they're their pictures, they're their
pictures.
THE COURT: Are you offering those pictures?
MR. KIMBERLIN: Can I offer them?
THE COURT: Yes.
MR. KIMBERLIN: Well I --
THE COURT: I'll receive them. Are you offering
them?
MR. KIMBERLIN: They're my only copies. I certainly
would like to have --
THE COURT: Well you can deal with that later.
MR. KIMBERLIN: I'd like to have them back.
THE COURT: Are you offering them?
MR. KIMBERLIN: Sure.
THE COURT: I'll receive them over objection. Next
question.
(The photographs marked as
Plaintiff's Exhibit were admitted
into evidence.)
MR. KIMBERLIN: Can I just walk her through them?
THE COURT: Well what's the purpose of that?
MR. KIMBERLIN: Well I want her to --
THE COURT: I mean they're nice pictures but what is
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the purpose of -- and it's a nice looking family -- so what's
the purpose of her explaining who her family members are?
What's the relevance of that to this cause of action? That's
my question.
THE COURT: No one's challenging that you don't have
a family and that you take vacations and go to the beach.
That's not a challenge in this case. No one is stating
anything to the contrary.
MR. KIMBERLIN: No, but they say that my wife --
THE COURT: Well but this, this, but just because
they say it that's not a factor in this case.
MR. KIMBERLIN: So --
THE COURT: So if you're offering the pictures I'll
receive them, but it's not necessary that she walk through and
explain. It really doesn't have anything to do with --
MR. KIMBERLIN: All right, all right.
THE COURT: -- what you're trying to prove.
BY MR. KIMBERLIN:
Q So Kelsie, are you allowed to go out front of the
house anymore?
A No, unless I'm going somewhere like taking my dogs
for a walk or something.
Q Are you afraid to go out front?
A Not always but it just depends if I see any other
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cars around and if I don't see any other people outside.
Q Do we have security cameras now in the house?
A Yes.
Q Outside?
A Yes.
Q How many?
A Okay, we have one on the front door, one on the back,
one looking at the house on the back and front and I think one
on the side, on the other side too.
Q Have you been scared by any of the actions that have
happened in the last two years?
THE WITNESS: I can't answer?
MR. KIMBERLIN: No, you can't answer.
BY MR. KIMBERLIN:
Q Do you feel like any of the things that --
THE COURT: This is going to be leading, I can tell.
BY MR. KIMBERLIN:
Q Have any of the things that have been said on the
internet harmed you?
BY MR. KIMBERLIN:
Q By these defendants?
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THE COURT: I will sustain the objection in that this
young lady is not a party to this case. She did not sue these
men. Or you didn't sue them in her name which would have to be
the case. If a minor child is bringing the case it would have
to be brought by her Next Best Friend who is generally the
parent. She is not a party in this case.
BY MR. KIMBERLIN:
Q. Have you read tweets by any of these defendants that
say they might take depositions --
BY MR. KIMBERLIN:
Q Have any of your friends not been allowed --
BY MR. KIMBERLIN:
Q -- to have sleepovers --
BY MR. KIMBERLIN:
Q -- or come to the house or be around you --
BY MR. KIMBERLIN:
Q -- because of --
THE COURT: Absolutely hearsay.
BY MR. KIMBERLIN:
Q Have you, has anything happened at school --
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THE COURT: You've already asked that question.
MR. KIMBERLIN: I'm trying to get it in another way,
Judge.
BY MR. KIMBERLIN:
Q Do you know what a pedophile is?
A Yes.
Q Very bad --
A Yeah, yes.
Q Have you ever seen any evidence that your dad's a
pedophile?
THE COURT: She an answer, overruled.
THE WITNESS: No.
THE WITNESS: Not at all.
BY MR. KIMBERLIN:
Q Not at all?
A No. My dad hasn't even, my dad when he's mad doesn't
even yell at me. He has never touched me in anyway. He has
never touched anyone in my family harmfully.
THE COURT: Hold on, anything else? No, you don't
just get to keep going. You have to ask another question.
BY MR. KIMBERLIN:
Q Have I ever shown any sexual interest in any of your
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friends at any age?
BY MR. KIMBERLIN:
Q How about with your sister --
BY MR. KIMBERLIN:
Q You said that I help you with your career. Are you
with me 24/7 pretty much?
A Aside school, yeah, yes.
Q School, just school and then who takes you to school?
A My dad.
Q Who picks you up from school?
A My dad.
Q Who paid for everything?
A My dad.
Q Do I take care of your mother?
A A lot actually, surprisingly.
THE COURT: Sustained. Sir, you're going way off
base.
MR. KIMBELIN: Your Honor, I need to let this jury
understand that we've suffered.
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THE COURT: You need to do whatever you need to do
with admissible evidence pursuant to the rules of evidence and
to the law. And I've allowed you some, I've given you a long
leash.
MR. KIMBERLIN: You have and I appreciate it.
THE COURT: And let you run pretty far out there.
But I'm now pulling you back in.
BY MR. KIMBERLIN:
Q Kelsie, do you --
MR. KIMBERLIN: Thank you.
BY MR. KIMBERLIN:
Q Do you want this stuff to stop?
A Definitely, yes.
Q Do you think it's hurting you and your career?
BY MR. KIMBERLIN:
Q Is it affecting --
MR. OSTRONIC: Thank you, Your Honor, no questions
here, Your Honor.
MR. AKBAR: None at all.
THE COURT: Thank you. You can either remain in the
courtroom or you can or go outside, whatever you choose to do.
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Anything else, another witness?
MR. KIMBERLIN: I think that I'm done.
THE COURT: Does that mean the plaintiff rests?
MR. KIMBERLIN: I believe the plaintiff rests.
MR. OSTRONIC: Your Honor, I ask for a directed
motion.
THE COURT: Ladies and gentlemen --
MR. KIMBERLIN: The only thing that I ask --
THE COURT: Yes --
MR. KIMBERLIN: -- is we discussed earlier --
THE COURT: We'll discuss it. Mr. Foreman, members
of the jury if you will just step out in the hallway.
Plaintiff has rested and matters I have to take up with the
lawyers.
THE COURT: And counsel while they're going out, make
sure that all exhibits that are marked whether they were
admitted or not admitted have to go to the clerk. And Mr.
Kimberlin you indicated there were some things that you might
want back. I'll entertain your motion to withdraw those things
so that you can have them back. Any objection?
MR. KIMBERLIN: Yeah, I'll --
MR. OSTRONIC: No, Your Honor.
THE COURT: All right, Mr. Clerk, he's made a motion
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to withdraw the photographs. That motion is granted. He can
take those back.
MR. AKBAR: I make a motion to withdraw this exhibit.
It wasnt allowed in.
THE COURT: You can but what would be the basis for
that other than it makes the file too bulky --
MR. KIMBERLIN: I have no objection.
THE COURT: All right, you can withdraw it.
MR. AKBAR: Thank you, sir.
THE COURT: Now, I'll hear from you.
THE COURT: Whatever or you can step back to the
table. The jury's out of the room. I'll hear from you.
MR. OSTRONIC: Your Honor, we've heard the
plaintiff's case. What we haven't heard is a single shred of
evidence as to the falsity with the defamation charge or the
false light charge which is required is an element of the tort.
And that goes for Mr. McCain, Mr. Walker, and Mr. Hoge. In
other words, the plaintiff even if everything here was taken at
face value for him, he still has not proved his case. There's
been no evidence of falsity. Really no evidence of harm and
certainly no evidence of malice. In fact, if anything the
evidence in here shows that it wasn't, that the defendants
anything they wrote about was well documented and well
researched and had a legitimate basis for their opinion which
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they published. It just simply isn't defamation or false light
under the tort. And in fact, one thing for false light we have
not heard from a single person on Mr. Kimberlin's behalf that
came up her and testified that they think less of him on the
basis of what these three defendants wrote about him. So there
has been no element of harm at all as to false light that his
reputation has been sullied at all in the community he wishes
to identify with.
Do you have one?
MR. AKBAR: Yes, sir, I would like to make the same
motion for a directed verdict. There's literally no evidence
for the jury to even consider on defamation per se; defamation,
false light; or any of the other accusations that he
references. In fact, I think he referenced a non-party of the
National Bloggers Club more than he referenced me. In his
opening he never cited me specifically as having said pedophile
or murderer. But on the stand, I testified to such but again
the jury has no evidence to you know, consider other than the
two times I admitted verbally that you know, I called him that.
I still believe he's that. He's not proven falsity of the
accusation that he is a pedophile. And appreciate the Court
letting me go pro se.
THE COURT: What do you have to say, sir?
MR. KIMBERLIN: Your Honor, this is a clear case of
defamation per se. Shapiro v. Massengill, 105 Md. App. 743
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talks --
THE COURT: What proposition does Shapiro stand for?
MR. KIMBERLIN: The proposition that Shapiro stands
for is that accusing somebody of a crime is defamation per se.
And you have defamation per se, you don't have to show specific
damages. Damages are presumed and that's the law of this court
in Maryland.
THE COURT: What's the cite for that case? Just give
me the cite. You dont --
MR. KIMBERLIN: 105 Md --
THE COURT: 105?
MR. KIMBERLIN: I believe so 105 Md to 30743 Md
Special Court of Appeals (1995). Shapiro --
THE COURT: I'm familiar with that case. It's a
Montgomery County case.
MR. KIMBERLIN: Oh, it is. In that particular case
they discuss the distinction between defamation per se and
defamation for fraud. And here's the quote. "In the case of
words of conduct actionable per se, their injurious character
is self-evident. It's a self-evident fact of common knowledge
which the court takes judicial notice and need not be pleaded
or proved."
So, and it says, goes on "When a plaintiff
establishes that the statement was made with malice, which is
what Ive argued this whole time, why I kept trying to get --
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THE COURT: What evidence is there of malice? Let me
finish the question so you know what I'm asking.
THE COURT: You have people that are reporters in a
style of media now that, as one of the witnesses testified to
didn't exit 15 years ago. And they are reporting information
back and forth regarding not firsthand knowledge that they
obtained, but they are reporting some of it's from newspaper
articles and other places. So where is the malice?
MR. KIMBERLIN: The malice is --
THE COURT: I didn't hear any malicious statements
made by --
MR. KIMBERLIN: Well okay, they created this, when I
say they --
THE COURT: You can't say they because there are four
defendants.
MR. KIMBERLIN: Well Mr. Walker created this false
narrative of my wife, had her file it. It was false. It never
happened. I'm not a pedophile. I didn't rape my wife.
THE COURT: But what evidence is there --
MR. KIMBERLIN: And so --
THE COURT: -- that has been put in that any of these
things, first of all in terms of false light, tell me how you
can make that argument when you yourself questioning a witness
and you said it at least two or three times, you said nobody
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has ever bought into that, did they. Nobody has ever bought
into it.
MR. KIMBERLIN: No, no
THE COURT: So you're saying that they said bad
things about you but nobody believed it.
MR. KIMBERLIN: No, I said no judge, no state's
attorney bought into it.
THE COURT: Who did buy into it?
MR. KIMBERLIN: Well obviously their readers.
THE COURT: How do you know? You can't just say, you
can't just come -- there are very few things in court that are
obvious. Now you're saying the readers bought into it, what
evidence is there of that?
THE COURT: See we use evidence in court.
MR. KIMBERLIN: I understand, but under Shapiro, the
statement, the defamatory statement prime is automatically
damaging. I don't have to prove that it's, that there's damage
you know. I wanted to prove that --
THE COURT: Talk about the defendants.
MR. KIMBERLIN: Okay, the defendants, Mr. Walker
called me pedophile hundreds of times if not thousands, created
the, used the Pedo bear graphic to superimpose my photo on.
THE COURT: Are you suggesting that a person could
file a lawsuit, just go into court and say that the defendant
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called me a pedophile and rests?
MR. KIMBERLIN: I'm not saying that.
THE COURT: Well then --
MR. KIMBERLIN: I'm saying that they called me a
pedophile. It was false but they did it maliciously --
THE COURT: What evidence is there that it was false?
MR. KIMBERLIN: What evidence is it's false? Are you
asking what evidence it's false? It's a crime. They're saying
I committed a crime.
THE COURT: You just said -- hold on a second. You
just said they called me a pedophile and it was false. My
question to you, well let me ask you another way. Why did you
say that it was false? I understand that you're saying that
you're not a pedophile. But you can only argue that. Who has
testified to that?
MR. KIMBERLIN: Well, you know, I'm saying under
Shapiro that it's --
THE COURT: And what's the cite for that? Just tell
me the cite.
MR. KIMBERLIN: I pulled it up --
THE COURT: You're way away from your mic.
MR. KIMBERLIN: It's -- maybe I can show it to you,
pull it up. Cite may be down, sorry. It shouldn't be that old
of a case.
THE COURT: No, it shouldn't be that old. It's Md.
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App, not Md. Okay, yes, okay. But --
MR. KIMBERLIN: But the point is under Shapiro it
says --
THE COURT: You have your back to them.
MR. KIMBERLIN: If it's under Shapiro, under Shapiro,
if they accuse you of a crime then it's per se defamation. And
under Shapiro there's per se defamation then you don't have to
prove damages. It's automatically presumed to be damages. And
the malice comes from the fact that they said I was a pedophile
based on quote a filing by my wife. But when those charges
were thrown out, nolle pross, they didn't correct it. They
continued it.
THE COURT: Go ahead.
MR. KIMBERLIN: They continued calling me a pedophile
after the charges were nolle pross. They not only did that
they went out and posted, Mr. Hoge did, went out and posted the
charge that was expunged and sealed by the court. He posted it
on the internet. And Mr. Hoge and Mr. Walker and Mr. Ali have
repeatedly said I'm a pedophile. I'm a pedophile. There was a
man burned alive last year because he was falsely accused of
being a pedophile.
THE COURT: Well that's not in evidence. You can't
argue things that are not in evidence.
MR. KIMBERLIN: No, I know, I'm arguing before you.
I'm not in front of the jury. But I'm just saying this is the
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kind of harm that's presumed from accusing somebody of a crime.
Case after case it talks about defamation per se and the harm
that comes from just calling somebody a pedophile or a criminal
or saying that they've done something. And you know, the
Supreme Court has ruled on this too. I mean in a similar case
Time, Inc. v. Firestone, you know, in that case it was
involving a divorce proceeding and the newspaper picked up
something that was in the divorce proceeding and tried to argue
oh, we're just reporting on something that's in the divorce
proceeding. And the Supreme Court said you know, that that's
not right. It's still defamatory, it's false. And so that's
what we're dealing with here. We're dealing with defamation
per se. And there's automatic presumed --
THE COURT: Why is it defamation per se?
MR. KIMBERLIN: Because it's a crime. Pedophilia is
a crime. They're saying I can --
THE COURT: Where is the malice?
MR. KIMBERLIN: The malice is --
THE COURT: With respect to each defendant?
MR. KIMBERLIN: Okay, the malice is Mr. Walker
created this crime by counseling my wife to file something that
was false.
THE COURT: Wasn't his testimony that your wife made
those allegations?
MR. KIMBERLIN: No, his testimony was that he
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wouldn't answer his involvement in creating that. And then
when my wife --
THE COURT: So your testimony or you're arguing that
Mr. Walker came up with the notion that you were a pedophile
himself. He just pulled it out of thin air.
MR. KIMBERLIN: I agree with that. Yeah, I mean that
could be my argument.
THE COURT: And what about Mr. Akbar?
MR. KIMBERLIN: And Mr. Akbar --
THE COURT: He pulled it out of thin air also?
MR. KIMBERLIN: No, he repeated that I was a
pedophile.
THE COURT: Okay.
MR. KIMBERLIN: He went on his blog. He went on his
Twitter account. He went on his radio program and said this.
And he sent this out to his National Bloggers Club group of
people and said that I was a pedophile. So now you know, you
can go on the internet and you see Brett Kimberlin and all of a
sudden I'm a pedophile. And it's a crime. Pedophilia is like
one of the most heinous crimes on earth.
THE COURT: Well --
MR. KIMBERLIN: I mean I'm talking about --
THE COURT: -- it's not a crime. Child abuse is a
crime. Sexual child abuse, sexual offense is the crime.
MR. KIMBERLIN: Okay, but --
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THE COURT: That is the definition of certain kinds
of conduct. It's not crime.
MR. KIMBERLIN: Well pedophilia you know, is
horrible, horrible offense and if anything is defamatory,
pedophilia is defamatory.
THE COURT: But within the elements of this offense
which are required to be proven --
THE COURT: -- under the Maryland law to present a
prima facie case of defamation, a plaintiff must establish four
elements. One, that the defendant made a defamatory statement
to a third person. Two, that the statement was false. Three,
that the defendant was legally at fault in making the statement
and four, that the plaintiff thereby suffered harm. So says
the Maryland Court of Appeals as late as 2007.
MR. KIMBERLIN: That's in Shapiro v. Massengill too.
And that's what it basically leads off with.
THE COURT: So are all the elements in this case, are
all those factors true in this case? Do we have --
MR. KIMBERLIN: We have the defamatory communication
which is the --
THE COURT: Okay, do we have that the statement was
false?
MR. KIMBERLIN: We have the statement is false.
THE COURT: And who testified to that?
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MR. KIMBERLIN: Who testified to it?
THE COURT: Yes.
MR. KIMBERLIN: If you go on with Massengill and
Shapiro if a statement is per se --
THE COURT: I understand what Massengill and Shapiro
said. My question is who testified in this case that the
statement was false?
MR. KIMBERLIN: Who testified?
THE COURT: Yes, what evidence is there that the
statement was false? The question does not suggest, the
Court's question does not suggest that the statement was true,
no. But I'm just focusing on what the, these are the Maryland
Civil Pattern Jury Instructions. The instructions that the
Court would have to give to the jury that they must follow.
And these are just annotations, Ofen v. Brenner which is 402
Md. 191 for the record a 2007 case.
So what testimony was there that the statements made
by these gentlemen were false?
MR. KIMBERLIN: It's considered false. It's I mean I
don't know what to tell you. You're asking me to prove a
negative. I mean --
THE COURT: I'm not asking you to prove anything.
I'm asking you who in this courtroom yesterday or today said
that those statements were false.
MR. KIMBERLIN: Your Honor, in a defamation case --
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THE COURT: You hate answering questions, don't you?
MR. KIMBERLIN: No, I'm just trying to --
THE COURT: Who said it was false?
MR. KIMBERLIN: Who said it was false?
THE COURT: Do you want to read this?
MR. KIMBERLIN: I know what they said.
THE COURT: I mean I didn't make this up. This is
Maryland law.
MR. KIMBERLIN: I think that the jury has to make
that finding whether it's false and whether it's true.
THE COURT: But there has to be some evidence. They
can't just pull things out of the air, a jury. They can't just
go back there and decide what they want to decide. I have to
give them instructions on the law.
MR. KIMBERLIN: Okay, then the instructions --
THE COURT: And the instructions on defamation,
Maryland pattern jury instruction 12.1, a defamatory statement
is a false statement about another person that exposes that
person to public scorn, hatred. Nobody in here in this case
said that they hated you. You haven't put any evidence up that
they hated you. Contempt or ridicule, there's no evidence of
that, thereby discouraging others in the community from having
a good opinion of or from associating or dealing with the
person. Defamation may result from a statement communicated to
a third person either orally or in writing.
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And here you have, I'll call them well bloggers, I
guess they're reporters, reporting stories and bantering back
and forth regarding stories that I think it originated, the
whole thing started back in Indiana many, many, many years ago.
And so --
THE COURT: -- what is the jury going to, how are
they going to consider whether there was public scorn?
THE COURT: This will go a lot faster if you try to
answer my question. If you don't have an answer say you don't
have an answer.
MR. KIMBERLIN: If somebody's called a pedophile
there's automatic public scorn. I mean --
THE COURT: Look, I'm giving you that. You've said
that, I understand it. But I'm focusing on the Maryland law
that I have to tell the jury. Now what I'm asking you, let's
take it one by one --
THE COURT: The statement has to subject the person
to contempt.
THE COURT: Any evidence of that?
MR. KIMBERLIN: Well I put my daughter on the stand
and she testified that we have suffered and --
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THE COURT: Testified she had suffered.
MR. KIMBERLIN: No, that our family has suffered and
I have suffered.
THE COURT: Look, you're the only party in this case.
MR. KIMBERLIN: I understand, but you're asking me if
anybody testified about public scorn, hatred, contempt to
ridicule. I wanted to get that in through my daughter.
THE COURT: Well you could testify, you didn't. It's
your choice. Nobody's criticizing you for it.
MR. KIMBERLIN: Your Honor, it's automatic when you
have --
THE COURT: When you say that could you have just
come in here and say they called me a pedophile, plaintiff
rests.
MR. KIMBERLILN: No, I have to prove that they called
me a pedophile which is what I did and that's what this case is
about, you know. Under --
THE COURT: So what do we tell the jury about
damages?
MR. KIMBERLIN: Well you tell them that this is a per
se defamation case. That they have to presume damages. That's
what Shapiro v. Massengill says. I mean it's not something I'm
making up, you know. It's what this case says, you know. You
find that this is per se defamation. Per se defamation is
defined as and you define that. And then you say there's
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damages for presumed. And once those, they have to go back in
jury. They can you know find them $50 or they can fine
$5,000,000, who knows. But it's the jury that should decide
under a defamation per se. You know, we're not talking about
you know, a guy saying I hit his car and I didnt hit his car
and you know, that I lost my job because of that. We're not
talking about that. We're talking about you know, a sustained
attack on me. And that's where the damages come in. So I
think the jury has to find that the statement was false. If
they come back and say oh, the statement was, you know, he
didn't show the statement was false, then that's their verdict.
The defendants were at fault in communicating the
statement. Obviously they communicated the statement. They
did it intentionally. That is false. And they did it with
malice. When the charges were dismissed they didn't come back
and correct the record and say oh gee, the charges were
dismissed and were nolle pross, you know. Tanya's getting
medical help or whatever. They didn't do any of that. They
continued every single day. I mean they tweeted yesterday I'm
a pedophile, yesterday. That's not part of this case, but it
shows it's malice. It's continuing. And they're basing that
on a charge that was dismissed. It was nolle pross. How can
they call me a pedophile based on something that was nolle
pross?
I mean Mr. Hoge testified or one of them testified
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that he saw it was pedophile when they gave a tee shirt to a
15-year old daughter of a friend of mine or something. I mean
holy mackerel. I guess everybody would be a pedophile if that
happened. And there's a reckless disregard for the truth here.
You know the jury can be instructed and the jury can make a
decision and that's what they need to do. It shouldn't be
thrown out on a motion for directed verdict. Let the jury come
in. They've heard the evidence. I presented my case.
THE COURT: Anything else?
MR. KIMBERLIN: Let's see. Well like I said just
going back in to the Time, Inc. v. Firestone case --
THE COURT: Does it matter in your argument at all
that there's no such crime as pedophilia.
MR. KIMBERLIN: A pedophile --
THE COURT: There's sex offense, first degree sex
offense, second degree sex offense, third degree sex offense,
fourth degree sex offense, those are the crimes.
MR. KIMBERLIN: I know --
THE COURT: First degree sex offense is rape. Second
degree sex offense is a type of rape. Third degree sex offense
is not rape. Fourth degree sex offense is --
MR. KIMBERLIN: There are --
THE COURT: But pedophilia is not a crime. You keep
using the word crime. They have not accused you of a crime.
Now do you think your argument would be stronger had you in
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fact, been accused of a crime?
MR. KIMBERLIN: Well I don't think so because there's
a lot of case law out there, and I apologize --
THE COURT: Well you don't have apologize.
MR. KIMBERLIN: I don't have it handy.
THE COURT: You were doing the best you could.
THE COURT: You didn't have to apologize.
MR. KIMBERLIN: But there's a lot of case law out
there where people are called a pedophile and they held per se
defamation. And --
THE COURT: There's a lot of case law out there in
Maryland where somebody has called somebody a pedophile and it
was held that that was per se defamation?
MR. KIMBERLIN: I'm not, I'm not, I dont' know if
it's in Maryland, but I've researched this pretty extensively
and there are a lot of cases where calling somebody a pedophile
and you know, I asked the clerk to help me out here because I
didn't bring those cases. But there are cases you know, where
that is found to be per se defamation, you know. And that's
what I'm arguing here, you know. That this, whether you call
it a crime --
THE COURT: Okay, talk about false light, talk about
the false light.
MR. KIMBERLIN: False light --
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THE COURT: What evidence is there that --
MR. KIMBERLIN: False light is portraying somebody as
somebody who they're not, you know. I mean --
THE COURT: I understand what it is, but what
evidence is there that the portrayal of you with respect to
that count was false, what evidence is there?
MR. KIMBERLIN: Because as my daughter came in and
testified, you know, I'm a father. I'm a husband.
THE COURT: No one said you weren't. What evidence
is there that --
MR. KIMBERLIN: And that I'm a producer, music
producer and I'm engaged in civic participation. She testified
to all that. That is, that's me.
THE COURT: That's not in dispute.
MR. KIMBERLIN: That's me currently.
THE COURT: What evidence is there that what they
said is false?
MR. KIMBERLIN: The --
THE COURT: Evidence?
MR. KIMBERLIN: The evidence of, well --
THE COURT: Who testified that it was false?
MR. KIMBERLINL: The pedophilia was false?
THE COURT: Yes, the false light count I'm talking
about. There's no per se false light.
MR. KIMBERLIN: No.
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THE COURT: So what evidence is there that --
wouldn't somebody have to say these things are not true?
MR. KIMBERLIN: Well my daughter, I tried to get that
in with her.
THE COURT: Well I know you tried to, but I'm saying
wouldn't somebody have to say that that's not true?
MR. KIMBERLIN: Well under false light it's the
portrayal that the defendants tried to --
THE COURT: But at a trial wouldn't somebody,
somebody, some evidence somewhere have to say that wasn't true?
MR. KIMBERLIN: That the --
THE COURT: Otherwise if I buy your argument all a
person would have to do is go into court and say things and
then just rest. Give it to the jury.
MR. KIMBERLIN: But that's not what I did. I had
them testify that they called me a --
THE COURT: I'm talking about false light, who said
that these things were false? What evidence?
MR. KIMBERLIN: I mean I feel like you're trying to
get me into a circular argument.
THE COURT: I'm not trying to get you into anything
except answering my questions, that's all.
MR. KIMBERLIN: They portrayed me as a pedophile. My
daughter portrayed me as a good father.
THE COURT: No one said you were not a good father.
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MR. KIMBERLIN: But they portrayed me as a pedophile.
That's false light.
THE COURT: They're plenty of people that were
portrayed as good fathers that were pedophiles.
THE COURT: That's got nothing to do with anything.
MR. KIMBERLIN: But that's false light. If they
portray me as a pedophile ---
THE COURT: I think there was a case somewhere just
north of the Mason Dixon line that got a lot of publicity.
MR. KIMBERLIN: If they portray me as a pedophile or
anything that happened 40 years ago and now you know, I'm a
music producer, a father, director of non-profit and I do all
these good deeds, you know, that's false light. They're trying
to --
THE COURT: That's a quantum leap in terms of what --
I read to you what the jury instruction requires.
MR. KIMBERLIN: What does the jury instruction on
false light?
THE COURT: And then I'm going to hear from them and
I'm going to rule with respect to these things.
False statement you know, defined, 12.4 of the
Maryland pattern jury instructions. A false statement is a
statement that is substantially incorrect. Minor errors do not
make a statement false if the substance or main thrust of the
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statement is true.
We don't have any evidence about the statement except
the testimony of the defendants.
MR. KIMBERLIN: And the testimony of defendants they
said I'm a pedophile. And my daughter testified that I'm a
good father. So let the jury decide, you know, which one it
is. Is there you know, they portrayed me one way. My daughter
portrayed me another way. And that's the issue. You know,
it's not, I mean do I have to bring in all kinds of character
witnesses? You said I didn't. I can't bring in character
witnesses if I don't testify. And so --
THE COURT: All right, what is your responses, your
motion --
MR. OSTRONIC: Your Honor, I go back to my original
thrust. There has been absolutely no proof entered, any
evidence to suggest these stories were not false or that the --
THE COURT: You mean are false.
MR. OSTRONIC: Are false, that's right, yes, sir.
They are false, yes, Your Honor. And all the facts and
statements that my clients made here, always with fully
developed opinions. The facts behind the opinions or the
opinions behind the opinions or the statements behind the
opinions were fully disclosed so that the reader would always
know exactly why my clients were making any statements they
might have made.
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Your Honor, it's just no evidence of falsity and
again no evidence of damages certainly.
MR. KIMBERLIN: Your Honor, these weren't opinions.
They were stated facts.
THE COURT: Okay, let me hear from Mr. Akbar.
CLOSING ARGUMENT BY ALI AKBAR, Pro se
MR. AKBAR: Your Honor, Mr. Kimberlin is a bold liar.
He presented a lot of altered documents and still couldn't
prove his case. He refused to testify after putting this Court
through the ringer. The one person who could have maybe
suggested that it was false, that he's a pedophile. I still
believe he's a pedophile.
He tried to use the Shapiro example through the
Maryland Appellate Court and that seemed like it was
sufficiently debunked but you know addressing the two points
that he brought up, he said that it's a specific crime. If you
accuse somebody of a specific crime that that's somehow
automatic defamation per se which would have entitled him
honestly to you know, a favorable judgment during motion
summary judgment, but it didn't. And not only that is
pedophilia is not a crime. This is something that you
encouraged me to say the word in the first place. I knew he
was a pedophile. I didn't say it until his wife said he was a
pedophile to me.
And even if it was a crime, it wouldn't stop citizens
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from alleging to other citizens that there was a crime alleged.
He cites maliciousness. Specifically he cited to me that all
he repeated something that was said was false, this gets me off
if that was the standard. He cites blog, Twitter, and my radio
program. There's no evidence for the jury to even consider any
of that stuff. He says give it to the jury. Let them decide
whether or not they want to follow the law, but whether or not
they believe that Kelsie Kimberlin thinks I'm a good father.
These are not mutually exclusive.
And Your Honor you referenced Arthur v. Brenner and
he has four points to prove that I defamed him to a third
person. There's nothing for the jury to even consider that
that's even possible outside of two times I admitted that I
believe he's a pedophile and that only applies to everybody in
this room. Second that the statement was false. He never
proved falsity. It is on him to prove that he's not a
pedophile. It is on him to prove that Mark Singer is a liar.
It is on him to prove that Julia Scyphers is a liar. It is on
him to prove that Tetyana Kimberlin is a liar. It is on him to
prove that we are unreasonable. It is on him to prove that we
made these with total disregard for the truth.
Obviously I'm not representing the other co-
defendants, but I thought it was apparently obvious that
nobody, not even Mr. Kimberlin himself alleged that we said
certainly I said that he was a pedophile before a statutory
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rape charge was filed, which actually is criminal.
So again if we apply what he thinks Shapiro says and
it is a crime and a crime was filed, that entitles us to say as
much.
So anyway there's no evidence for the jury to
consider. I'm positive that the jury would find in our favor,
my favor and but it doesn't even need to get to them because as
a matter of law, he hasn't met the standard that he's dragged
us through 11 months of hell for.
Brett Kimberlin is a pedophile.
THE COURT: All right, gentlemen, remain seated. I
will be back in just a few minutes.
THE CLERK: All rise, oh, be seated.
(Recess)
THE COURT: Thank you, have a seat, please.
JUDGE'S RULING
At the conclusion of the presentation of the
plaintiff's case, each defendant made a motion for judgment,
arguing that there had not been a sufficient and factual
predicate for a jury to consider the allegations that have been
made by the response.
In plaintiff in response argues that he has
essentially been defamed. That there is defamation per se in
this case and that the case should go to the jury.
With respect to the count alleging that the
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defendants showed him in a bad light or false light, that is
really the easier of the two and the Court will grant judgment
in favor of the defendants with respect to that count. There's
not one scintilla of evidence in this case that the statements
that were made by these individuals were false.
Now, the Court is not finding that the statements
were true. We don't have to get there. It's just that there
was no testimony that they were false.
Now, the plaintiff in this case made a trial strategy
and for the record I understand that the plaintiff is not an
attorney. But as I explained to the parties when this matter
started that we don't have two sets of rulebooks. We don't
have one set of rulebooks for someone who is an attorney and
then another set of rules for a person whos not an attorney.
If you come into the court, the standard of proof, the
requisite requirements of our rules of evidence and our rules
of procedure apply whether you're a lawyer or whether you're
not a lawyer.
I must say parenthetically and I have no reason to
ingratiate myself to the plaintiff in this case, but he
conducted himself and presented a case as if he's had some
legal training or experience and did a fairly good job I would
say presenting the case. But there are some technical nuances
in this case that he apparently did not view in a fashion that
would lead the Court to rule in his favor.
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He cited Shapiro v. Massengill which is at 105 Md.
App. 743 a 1995 case. And that case held that the
determination of whether an alleged defamatory, alleged
defamatory statement is defamatory per se or defamatory per
quod. That is a question of law. That's not a question of
fact.
Now if the alleged defamatory statement is per quod,
then the jury must decide whether the statement does in fact
carry defamatory meaning. Now the plaintiff during the course
of his presentation used the term crime when he referred to the
fact that the defendants accused him of being a pedophile. And
he kept saying throughout the course of his arguments that they
accused me of a crime. They accused me of being a pedophile.
Well that is not a crime in Maryland or in any other state that
I am aware of.
In a case of Pettit v. Erie Insurance Exchange, 117
Md. App. 212 (1997) case, not a criminal case, obviously, but I
do find the case instructive with respect to what pedophilia
is. And I'll read what the court said about that in pertinent
part.
Now, in that case on page, it's also at 699 A.2d 550.
And the court said in pertinent part Portions of the transcript
of Kowalski's criminal charge containing testimony of Fred
Berlin, MD, Michael Sweet, a Ph.D. and Joanna Brent, MD
conclude in their conclusions that Kowalski is a pedophile.
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And these are doctors, Ph.D. doctors and MD. Include in their
conclusion that Kowalski was a pedophile. An affidavit of Neal
H. Blumberg, MD who upon review of Kowalski's medical records
and the trial testimony of Drs. Berlin, Sweet and Brent
concluded that Kowalski suffers from a mental disorder known as
pedophilia. And clearly pedophilia from the medical profession
point of view and from the psychological professions point of
view it is a mental condition. It is not a crime. Now if an
individual who suffers from that condition takes some steps
towards the satisfaction, if you will, of the urges that a
pedophile might have then it's of course a crime depending upon
what degree it might be. But the condition itself is not a
crime. And so the plaintiff's use of the term pedophilia in
one sentence and crime in the next is misplaced.
Now, and so another case is instructive on that issue
as well, in Brodzki v. Fox Broadcasting Company, which is at
868 F.2d 386 (2012) case. Brodski spelled B-R-O-D-Z-K-I versus
Fox News. They said with respect to definition, a pedophile or
not the definition, but what happened in that case, the
plaintiff resided in Richmond Hills, Texas. He alleged that
during a Fox football pregame show originating in Los Angeles,
that the Fox broadcasters, Jimmy Johnson and Howie Long and
Terry Bradshaw and Mike Strahan accused him of being a
pedophile. In addition, plaintiff alleges that the
broadcasters continually said that he had taken a picture of a
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young boy's that quote, "he had taken a picture of a young
boy's gun," close quote. And Johnson said quote, "You took a
picture of a boy's penis" close quote, after Long had mentioned
plaintiff's name. Plaintiff alleged that events which occurred
on September 12, 2010 continued every Sunday through and
including December 19, 2010 and he sought $100,000,000 in
damages.
And what the court found in that case was that and
granted motion in favor of the defendants is that he had not
satisfied the requirements in the defamation case for the
reasons much like I've cited in the previous case which was
Pettit v. Erie Insurance Company.
So, I suppose the tenor of what the plaintiff was
arguing is certainly understandable, but as I had tried to
explain to him during the course of the trial, that these terms
and definitions have specific legal meanings. And they're not
interchangeable.
Now, when I talk about the presentation of the
evidence, I don't say it to be critical of either side, but
there was one bit of well it was actually not evidence, but in
opening statement he discussed something else that was alleged
but somehow it got lost during the trial and even in his
closing he didn't focus on this.
He said also that he was accused of being a murderer
and that in fact is a crime. But for some reason, perhaps
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because of the reasons that he argued he focused in on the use
of this term pedophilia and the allegation that he was a
murderer which there is no evidence that he is, sort of fell by
the wayside. He didn't argue that and as I said, I don't say
it to criticize him, but that might have been something that
maybe would have had a bit more grip in this case had it been
argued. But I suppose it would seem that he focused on
pedophilia because it obviously gins up a greater emotional
response in people's mind's eye maybe when that term is used.
But it is not a crime, you know. Murder is a crime. There's
no such crime as pedophilia.
The crimes come about when a person who is a
pedophilia takes actions to satisfy the desires that he or she
may have. And so clearly there really isn't anything for a
jury to consider. That is not a claim upon which relief could
be granted or should be granted.
Ironically in the Terrain case, Terrain v. Lu which
is at, apparently it wasn't reported, but this is just a bit of
irony that the word racism was sort of thrown around in that
case also and that's quite ironic. Apparently there was an
allegation that the defendant at some point in that case called
the plaintiff a racist pedophile. And racist pedophile is no
more of a crime than being a pedophile is.
And with all due respect to both sides involved in
this case, it is risky business. Defamation is an extremely
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difficult case to prove. Going all the way back to New York
Times v. Sullivan and the cases that follow and I haven't seen
New York Times v. Sullivan for a while, and so the cite of that
case escapes me. But it's a good place to start in terms of
understanding what the requirements are.
Assume arguendo that pedophilia was a crime and it is
not, even though as I said the plaintiff kept referring to it
as a crime, it's not a crime. Assume arguendo that it was,
there was absolutely no evidence in this case of exactly to
what the defendant is alleged to have done. And so I think the
case falls short of rising to the level that it should go to
the jury. And for those reasons the Court issues a judgment in
favor of the defendants.
I appreciate, Mr. Kimberlin the courtesy with which
you showed your colleagues on the other side of the bar. Also
appreciate, counsel, your courtesy that you showed Mr.
Kimberlin and the way you conducted your part of the case as
well.
These cases are tough. These cases are serious.
Everybody had their day in court. Hopefully they can sort of
put this matter to rest now. All right, that's the ruling of
the Court.
THE CLERK: All rise.
THE CLERK: Court stands in recess.
(The hearing was concluded.)
cgg 272

! Digitally signed by Caroline G Gibson

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

By:

_________________________
Caroline G Gibson
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