26 thoughts on “Team Kimberlin Post of the Day

  1. A crime “that occurred”….. The typical passive voice of the criminal trying to distance himself from agency in a crime.

    • As opposed to “The crimes I committed and was rightfully convicted of and sentenced to federal prison for.” Something I think most of you have seen me use about myself from time to time …

  2. Some things that may be going on:

    1) Rauhauser is setting up Schmalfeldt for a fall.
    2) Schmalfeldt is allowing himself to be set up because he is an intentional dumbass.
    3) Rauhauser and Kimberlin are trying to scare Hoge into shutting down his blog, in which case the increase in flack indicates that Hoge must be nearing some target.

    • To follow the analogy, we Lickspittles then are the “Spitfires” protecting the “big boys” (the main weapons, the bombers if you pardon the pun) as they near the target and drawing the fire of the easily distracted aerial gunners …

    • I think doors have slammed shut and traps have been sprung. Things are just playing out now, with dependable derpness from certain parties. But it is done. Now all that’s left is to wrap it up and tie it with a bow.

  3. I saw on the interwebs that somebody became Bill’s !!!LISTENER OF THE MONTH!!!

    Wow, did that person win anything???

    Of course, my next thought was “Well, I wonder if he’ll be able to find somebody else to listen next month?”

  4. I don’t believe the “defamation proof” argument will gain much traction with the Courts.When I read the pleadings back when they were first made available to the people following the case online, I cringed a little when I read it. While I haven’t looked, I very strongly doubt that there is caselaw which would support a dismissal of a suit based on the fact that the plaintiff is a really bad guy who did really bad things in his past.

    Justice is supposed to be blind. In the same way that the law does not permit the raping of prostitutes, the law forbids libeling people convicted of horrendous crimes (and possibly escaping punishment for much worse crimes). The damage to what little reputation he may have may be nominal, and thus even if he wins his case the Judge may only give him, say a dollar, instead of the $2,000.000 he is requesting.

    The arguments that are likely to have the most traction are failure to state a claim, procedural misconduct, failure to abide by the court Orders, etc. The Judge has seemingly bent over backwards to accommodate the Plaintiff – which is smart on his part. He has stayed all proceedings until the Plaintiff figures out what he is doing, which may never happen. It might be years of trying in vain before the Court finally says enough and dismisses, at which point no Appeals court would be able to say the Plaintiff wasn’t given every opportunity to correct before dismissal.

    • Which may be “fair” to the plaintiff, but is not at all towards the defendants. They will have to bear significant costs in time, money, and stress, something this plaintiff has as one of his primary goals.

      • Unfortunately this is our system vs the British system where the loser would pay legal fees. Then again if we permit a multiple convicted felon to sue for damage to his reputation and he recovers nominal damages, he would get fees under the British system. It might convince a contingency plaintiffs lawyer to represent Kimberlin under the British system. Ugh. The real issue is should we permit someone to utter a falsehood about a person with a nefarious reputation? I guess if the societal goal is to protect truth the answer is yes. But then who can sue our president and Jay Carney for their many many lies.

    • When the supposed tort is saying someone did bad things, behaves badly, and has bad impulses, then court records of his convictions for doing bad things, decades of reports of him doing bad things, and his own statement of having bad impulses are sufficient defense. “Defamation proof” is shorthand for all that, for the recognition that someone can have such a bad reputation that it cannot be further damaged.

    • I too suspect that the defamation-proof argument is not strong in support of a motion to dismiss. Not many cases were cited in support of the doctrine that someone can be defamation proof, and one case cited also had other grounds for dismissal.

      But all that is beside the point. The number of defenses available in this suit are manifold, and several of them are weighty enough that they should result in a motion to dismiss the federal case. At trial, Kimberlin would have to prove that his reputation was harmed; if he cannot establish that by a preponderance of the evidence, then his being defamation-proof is being decided as a matter of fact, not law. Finally, the whole point of this blog entry was whether Kimberlin had accurately described the argument made, not whether the actual argument made was legally sufficient.

  5. I cannot, for the life of me, understand why advice, albeit unsolicited, about which legal arguments are more likely than others to gain traction in the courts, would be viewed by so many people who comment here as duplicitous. I am not Neil. My identity is not even remotely hidden to Hoge (my name is in my email address, it links to a domain I own, and a google search of my name shows exactly who I am). I’m not a plant, a handler, or part of team Kimberlin.

    For those of you unfamiliar with our court system, the courts have very heavy dockets (case loads). Our society has become seemingly more litigious every year, meaning more and more lawsuits are filed every year. These suits are often handled by Court systems that are rarely funded appropriately – meaning the same number of judges are often forced to handle an ever increasing number of cases, many cases lasting years. Moreover, Judges are people too, and like anyone else who has only a passing interest in what you have to say, they want you to get to the point quickly and not waste time on unimportant matters. If you have 5 good arguments, 7 marginal arguments, and 3 bad arguments, you should refrain from making them all in the hopes that one will stick. Make your best arguments.

    Now, it DOES appear a few courts actually have recognized a libel proof / defamation proof defense. I don’t know if Maryland does or does not. Courts which have recognized such an argument have done so in the context of, for instance, a newspaper wrongly publishing that a person with a long history of drug abuse, failed a drug test. In that context, one court said that a person convicted on federal drug charges and state drug charges sees no damage to their reputation on a false claim that they failed a recent drug test. Likewise, if a person had been convicted as a multiple murders and was a known hitman, an article wrongly attributing a victim to that hitman would likely not result in damage to his reputation. By contrast, a drug dealing, serial bomber, domestic terrorist who has been convicted of forging documents and possibly also perjury (it is hard to keep the wrapsheet straight) might be able to argue, “but yeah, I never murdered someone,” or, “but yeah, I am not a pedophile.”

    Now, at the end of the day, a person with a wrapsheet like the one I just mentioned probably doesn’t have a reputation worth very much, but I’m not entirely sure I would make a libel proof argument, when there are much stronger legal arguments to make. Strictly speaking, I’m not really sure what actual charges were made in the Federal suit (it is a rambling mess), beyond the Rico charge (which will eventually be dismissed for failure to state a claim).

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