Last week, Brett Kimberlin filed his appeal brief with the Seventh Circuit Court of Appeals in his current attempt to overturn some of this Speedway Bombing convictions. He also filed a second motion requesting that the court appoint pro bono counsel to represent him. Yesterday, the court denied his motion for freebie lawyer.
Also yesterday, the Assistant U. S. Attorney representing the government in the case filed a request for a one month extension of the filing date for the reply brief. The court granted that motion and set a new schedule for briefs.
I’ve been following Brett Kimberlin’s attempt to have some of his Speedway Bombing convictions set aside. Yesterday, I posted the appeal brief he filed on Wednesday. He also filed a second request for the court to provide him with a freebie lawyer to handle oral argument in the case. Of course, the court can rule on just the written record and filings. Indeed, most appeals are considered without a hearing.
I found paragraph 13 interesting. If Kimberlin and his wife are getting by on only about $32 k a year, who’s paying for all those trips to Ukraine to produce music video—or producing the music videos for that matter?
Paragraph 14 begins, “An attorney would not only represent Appellant but would also effectively and ethically present the facts and the law to this Court.” It’s puzzling why Kimberlin is asking for an ethical presentation of the facts and law when that’s clearly against his interest. OTOH, he hasn’t had a very good record as a pro se litigator. We’ll see how the court rules on his motion.
Brett Kimberlin’s has been trying to have some of his Speedway Bombing convictions overturned. His efforts failed in the District Court, and he’s appealed to the Seventh Circuit. His appeal brief in the case was due yesterday, and he managed to get it filed on time.
It appears to be chocked full of misrepresentations of what happened in his original trials and the evidence in the trial records. One that jumped out at me was his incomplete recounting of the evidence relating to his conviction for being a felon in possession of explosives (beginning on page 9). His brief implies that the use of explosive s by a third party for an excavation job on Kimberlin’s rural property years before the Speedway Bombings provided the grounds for his conviction. However, residue of Tovex explosive was found in the Chevrolet Kimberlin was driving when he was arrested and was also found in his Mercedes.
The felony conviction which made Kimberlin ineligible to possess explosives was for perjury. It seems he still tells lies.
The TKPOTD from seven years ago today dealt with one of the sillier claims in the Dread Deadbeat Pro-Se Kimberlin’s RICO Madness LOLsuit and my not-so-tongue-in-cheek response.
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The Dread Pro-Se Kimberlin feigns fear of Aaron Walker and me. This is from paragraph 76 of his second amended complaint in his Kimberlin v. The Universe, et al. RICO Madness.
TDPK strikes me as a bit disingenuous with his worry about people who own firearms. After all, his authorized biography Citizen K tells of how he possessed several AR15s, a silenced pistol, a shotgun, and other weapons back in his drug dealing days. He was barred from possessing any firearm back then because of a previous felony conviction.
I, OTOH, am a law-abiding gun owner, and, although my 66 year old eyes ain’t what they used to be, I’m still a reasonable shot. The target on the left was shot rapid fire with a .45 at 50 feet.
I’ve never threatened anyone on Team Kimberlin with violence. However, anyone who wishes to threaten me or my family may draw whatever conclusion he will based on what he knows about me.
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Things have remained peaceful at stately Hoge Manor. BTW, this is from a more recent trip to the range with a 9 mm Browning High Power.
There’s been a bit of action in Brett Kimberlin’s appeal in the Seventh Circuit related to his Speedway Bomber convictions. Last week, he filed a motion asking that the case be scheduled for mediation. Apparently, he hoped that the current leadership of the Justice Department would be willing to resolve the appeal in his favor via a negotiated settlement.
Kimberlin’s Request for mediation was filed on the 6th. The version posted appears to be missing at least on page. That could be from an scanning error when the Clerk entered the document. OTOH, it wouldn’t be the first time that Kimberlin has failed to send all the pages of a court paper he was trying to file.
This episode of Blognet first ran five years ago today.
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MUSIC: Theme. Intro and fade under.
NARRATOR: Ladies and gentlemen, the story you are about to hear is true. The names have been changed to protect the innocent.
MUSIC: Up, then under …
NARRATOR: You’re a Detective Sergeant. You’re assigned to Internet Detail. An infamous cyberstalker has filed a bar complaint against a First Amendment lawyer. Your job … help get the facts.
MUSIC: Up then under …
ANNOUNCER: Blognet … the documented drama of an actual case. For the next few minutes, in cooperation with the Twitter Town Sheriff’s Department, you will travel step by step on the side of the good guys through an actual case transcribed from official files. From beginning to end, from crime to punishment, Blognet is the story of the good guys in action.
I served in the Army. During my time as a soldier, I engaged in violence, and much of it involved the use of firearms. In the decades since I left the Army, I’ve been involved in several tense situations which could have escalated to violence but did not. In each case, the threat was terminated when the other party or parties realized that I was armed, and that the cost/benefit ratio of engaging with me was less favorable than had been expected. My having a gun resulted in non-violent ends to those encounters.
Not every bad guy will weigh the odds the same way, sometimes deterrence will fail, and force will have to be met with force, but so far, deterrence has worked for me.
Being armed isn’t for everyone, but it has its advantages for those willing to undertake the responsibility.
Here’s the current status of The Dread Deadbeat Pro-Se Kimberlin’s appeal of some of this Speedway Bombing convictions currently before the Court of Appeals for the Seventh Circuit—
1. He’s still representing himself pro se. The court denied his request for a pro bono lawyer.
2. Because the court denied Kimberlin’s request to hold his appeal in abeyance until a lower court rules on an unrelated motion, his Transcript Information Sheet was due on Tuesday. As of close of business yesterday, it still wasn’t listed in the online docket.
3. His brief and short appendix of the record are due on the 14th.
As I mentioned yesterday, Brett Kimberlin’s Transcript Information Sheet for the current appeal he has before the Court of Appeals for the Seventh Circuit was due day before yesterday (29 June). At close of business yesterday (30 June), it still was not a part of the online docket.
In a couple of his appeals to U.S. Circuit Courts, The Dread Deadbeat Pro-Se Kimberlin has seemed to realized how poor his legal skills are, and he has asked the court for a free court-appointed lawyer. A few days ago, the Seventh Circuit denied such a request. Five years ago today, my post titled Well, That Didn’t Take Long reported a seminal denial by the Fourth Circuit.
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The Fourth Circuit wants The Dread Pro-Se Kimberlin to explain the merits of his case before they appoint counsel to file an amicus brief on his behalf in the Kimberlin v. McConnell, et al. LOLsuit appeal.
The Kimberlin v. McConnell, et al. LOLsuit was based on the crackpot theory that because the Senate had not acted on the Merrick Garland’s nomination to the Supreme Court, its advice and consent had been waived, so Garland’s nomination should be considered confirmed. No court ever ruled on the merits of that proposition because it was found that Kimberlin didn’t have standing to bring the suit.
BTWl, that’s the same Merrick Garland who is now the Attorney General leading the Department of Justice defending the current Kimberlin LOLsuit in the Seventh Circuit.
And one more thing … Kimberlin’s Transcript Information Sheet for the current appeal was due yesterday. Perhaps it arrived too late to be scanned into the case docket on PACER, but as of close of business yesterday it wasn’t in the online docket.
Brett Kimberlin has been trying to get some of his Speedway Bombing convictions overturned. His efforts in the U.S. District Court in Indianapolis have been denied, so he’s filed an appeal with the Court of Appeals for the Seventh Circuit. Last week, he asked that his appeal be held in abeyance while yet another motion about one of the Speedway Bombing cases is considered by the District Court. Last Friday, the court of appeals denied that motion and ordered Kimberlin to get his paperwork in as required by the existing briefing schedule.
I’m not always sure whether the crackpot legal theories and false narratives spun by Team Kimberlin are the result of wishful thinking or purposeful lying, but they have come up with some doozies. Eight years ago, Bill Schmalfeldt was trying to peddle the idea that because Aaron Walker had had supper with Lee Stranahan and me, Aaron has engaged in the unlawful practice of law in Maryland. Of course, the facts didn’t support the Cabin Boy’s™ wild claims, and eight years ago today, I posted about What I Saw in February, sayin that I was willing to testify under oath.
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Bill Schmalfeldt has sent the following tweet:
Bill Schmalfeldt @Xcitizen10 @AaronWorthing Well, I do — or did — have copies of Stranahan’s complaint form filled out by Walker. But I’ve already filed.
4:36 PM – 27 Jun 13
If he has such a document, it is a forgery.
I picked up Lee Stranahan from BWI Airport in the early evening and took him to dinner. While we were getting settled in the restaurant, he showed me the Application for Statement of Charges which he had brought from Texas. It was already filled out. The handwriting was not Aaron Walker’s.
Aaron Walker joined us at the restaurant and was shown the paperwork. He appeared to be reading it for the first time. He offered no legal advice or opinion on the contents of the Application.
After supper, I took Lee Stranahan to the District Court Commissioner’s office at the Howard County lockup. Aaron Walker again joined us to observe, but took no part in the proceedings. Mr. Stranahan filed the prepared Application with some minor notations requested by the Commissioner.
If Bill Schmalfeldt is foolish enough to instigate any proceedings based on the theory that Aaron Walker prepared Lee Stranahan’s Application for Statement of Charges or offered any legal advice to Mr. Stranahan in Maryland, he should consider that I will testify to these facts under oath.
It is a fact that the District Court audio recording of the 28 February, 2013, Hoge v. Schmalfeldt hearing contains Bill Schmalfeldt saying that he never received notice to stop communicating with me. It is also a fact that Bill Schmalfeldt admitted in court to sending a tweet referencing my notice to him on the very day I sent it. If he was tweeting about my notice, he must have been aware of it. That leads to the following conclusion: Bill Schmalfeldt is a liar.
UPDATE—For the record, I bought and my lawyer now has in her possession a certified copy of the District Court audio. We were prepared to play it during the Circuit Court hearing if Schmalfeldt had challenged my recollection of events. The Cabin Boy may remember that my lawyer played Judge Rasinky’s warning to him for Judge Stansfield from the District Court CD.
Also for the record, I do not believe that this post contains any threat. It merely states what I saw and that I will be willing to testify under oath.
Oh, and one more thing. If Sore Loserman Bill is really contemplating a lawsuit against anyone, it might be wise for him to have a conversation with a real lawyer about the potential obligations of a plaintiff during in discovery.
UPDATE 2—I’m told that the Cabin Boy is acting on advice from a lawyer in Ohio who is not a member of the bar in Maryland. But Schmalfeldt is in Maryland and the matter concerns Maryland law. According to Schmalfeldt’s theory, doesn’t that mean that the Ohio lawyer is practicing without a license by advising him?
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Nothing proceed as the Cabin Boy™ had hallucinated.
Since 2018, Brett Kimberlin has been filing motions in the U. S. District Court in Indianapolis trying to get some of his Speedway Bomber convictions overturned. He was unsuccessful, so he filed an appeal with the Seventh Circuit Court of Appeal, and as part of that appeal asked for a free lawyer. The Court of Appeals denied the request for pro bono counsel.
This week, The Dread Deadbeat Pro-Se Kimberlin filed an motion to hold his appeal in abeyance until the District Court can rule on a motion he believes might be relevant to his appeal. I’ve posted a copy here. I would normal post the document to Scribd, but that site’s upload function his flakey as I’m drafting this post. When Scribd gets it’s act back together, I’ll post TDPK’s motion and embed it here.
Kimberlin is grasping at straws, hoping some of his convictions could be overturned because some hair evidence which tied him to some other physical evidence isn’t available for DNA testing.
Pretty much everything the members of Team Kimberlin try fails or, at best, performs below their expectations. Their campaign of lawfare is the prime example, of course. The TKPOTD dealt with one of the many failures associated with The Dread Deadbeat Publisher Kimberlin’s flagship PR operation, Breitbart UnmaskedBunny Billy Boy Unread.
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The Gentle Reader who has been following The Saga of Team Kimberlin for a few years may remember that in early 2017 Bill Schmalfeldt used his position as editor of Breitbart UnmaskedBunny Billy Boy Unread to publish a series of defamatory posts accusing me of plagiarism. He used without permission material from Hogewash! in one those posts, so I filed a DMCA notice with the ISP hosting BU which resulted in BU receiving an email which read in part:
For your information, I have received the following/attached notice of copyright infringement. The infringing materials must be removed from your site within 24 hours, or under the Digital Millennium Copyright Act (DMCA), we are required to block access to your site. Once we have had to do that, we cannot unblock it for a minimum of 10 days after you respond with the proper counter-notification under the DMCA or the individual submitting the notification advises us that the material has been removed.
Filing a counternotice would have required providing information concerning the actual ownership of BU and information for service of process on the owner and/or operator. Rather than give up that information, the site was moved offshore, first to Iceland and then to Holland. The Cabin Boy’s™ Breitbit News site moved to the same server at about the same time.
The other site hosted on that Dutch server is empr dot media, a Ukrainian “news” site. Of course, it could be purely coincidental, but I find it interesting that BU moved to a server hosting a Ukrainian PR website while Brett Kimberlin was working closely with a Ukrainian-American operative of the Democratic National Committee on a project to dig up dirt on the Trump Administration.
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Although, the BU site hasn’t had any new material since Bill Schmalfeldt went off for a winter vacation in Montana in late 2018, the Cabin Boy™ still maintains a connection, having tweeted a link to one of his defamatory posts only a few months ago.
UPDATE—My CPAC friend @GrizzlyJoeShow tweeted about the poor proofreading of the last complete sentence on page 5 of the Jones motion. I replied that the Left is more concerned with pronouns than prepositions.
Most people with top level security clearances are not granted access to particular information because they don’t need to know every bit of classified information in order to do their jobs. This article over at RedState demonstrates why some information should be kept compartmentalized. When a high-ranking Chinese counterintelligence official defected to the Defense Intelligence Agency, the DIA kept the defection from the rest of the Intelligence Community until evidence of Chinese penetration of U. S. intelligence agencies could be verified.
It’s being reported that among the information the defector has provided were Chinese government copies of the contents of the hard drive on Hunter Biden’s laptop, showing the information the Chinese government has about Hunter’s pornography problem and about his (and the Big Guy’s) business dealings with Chinese entities.
There’s always been a presumption that the President should always have access to all classified information, that his job grants him a need to know. We may be seeing an exception to that rule.
A big part of Brett Kimberlin’s litigation record as The Dread Deadbeat Pro-Se Kimberlin has been the filing of futile court motions. Just this week, his gimme-a-free-lawyer motion was rejected by the Seventh Circuit Court of Appeals. The INMTUYK for six years ago today was about another failed request to a court.
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The Dread Pro-Se Kimberlin has sent this to the judge in the Kimberlin v. Frey remnant of the Kimberlin v. The Universe, et al. RICO Madness.
UPDATE—There are an amazing number of errors in this filing, but I’ll point out just two for now.
First, TDPK says he wants to add the Los Angeles DA’s Office and the FBI as defendants. Does he mean the City of LA or the County of LA? However, that question is moot, because, second, the court has ordered that TDPK may not make any further amendments to his LOLsuit.
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It was an FBI Special Agent who busted Kimberlin in Indianapolis in the arrest that led to his car being impounded and searched and bomb making materials found in the trunk. Maybe he still got a grudge.
Brett Kimberlin filed motions in his old Speedway Bomber cases to try to have some of the convictions set aside. His motions were denied, and he has appealed to the Court of Appeals for the Seventh Circuit. I reported in May that The Dread Deadbeat Pro-Se Kimberlin had filed a Motion for Appointment of Pro Bono Counsel. On Monday, the Court of Appeals denied his motion.
This episode of Blogsmoke first ran three years ago today.
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SOUND: MODEM CONNECTING FADES UP TO FULL MIKE—SINGLE SHOT—RICOCHET
MUSIC: UP AND UNDER—RECORDED—CUT 1
ANNOUNCER: (VOICE OVER MUSIC) Around Twitter Town and in the territory of the net—there’s just one way to handle the harassers and the stalkers—and that’s with an Internet Sheriff and the smell of “BLOGSMOKE”!
MUSIC: THEME HITS: FULL BROAD SWEEP AND UNDER—RECORDED—CUT 2
ANNOUNCER: “BLOGSMOKE” starring W. J. J. Hoge. The story of the trolling that moved into the young Internet—and the story of a man who moved against it. (MUSIC: OUT)
JOHN: I’m that man, John Hoge, Internet Sheriff—the first man they look for and the last they want to meet. It’s a chancy job—and it makes a man watchful … and a little lonely.
Today is the eight anniversary of the first peace order issued against a member of Team Kimberlin, my first peace order against Bill Schmalfeldt. This post told My Side, Part 2, of my initial legal response to harassment from Team Kimberlin.
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Gentle Reader, here’s the second installment in my side of the story of my adventures with Team Kimberlin.
As those of you who have been following the Saga of The Dread Pirate Kimberlin and Team Kimberlin will remember, Cabin Boy Bill Schmalfeldt spent months harassing Lee Stranahan and his family with disgustingly crude filth, including incessant and impertinent questions regarding the death of a child during childbirth. On Monday, 11 February, Lee came to Maryland from Texas to file a harassment charge against Schmalfeldt. I picked Lee up at BWI airport, took him to dinner, took him to the District Court Commissioner’s Office, put him up for the night at my house, and dropped him back at the airport on Tuesday morning. BWI is just off of one of the routes I take to work.
On 14 February, I received 40 tweets in less than one hour from @BreitbartUnmask ranting about Lee Stanahan, Aaron Walker, and me. Just after midnight on 15 February, I posted a notice on this blog and on Twitter addressed to @OldUncleBastard, @BreitbartUnmask, and @OccupyRebellion demanding that they stop communicating directly with me. Note: The date/time stamps on the tweets in this post are in GMT; I’ll convert important ones to Eastern Time for clarity.
Later that day, Schmalfeldt sent a tweet via his @OldUncleBastard identity referencing my demand. He was clearly on notice.
OldUncleBastard @Xcitizen10 @BreitbartUnmask A commentator on @wjjhoge’s blog post http://t.co/uZkIc4lA explains what the right wing mafia cabal wants.
6:37 PM Feb 15th from web
Click on that link yourself and see. The time stamp on the tweet converts to 1:37 pm Eastern Time.
He continued to send tweets to my @wjjhoge account. Between the tweet cited above and around 7:27 pm on 18 February, 2013, Schmalfeldt sent 11 more tweets to @wjjhoge. Because of this continued messaging following my demand to cease as well as other matters, I filed an Application for Statement of Charges on 18 February, 2013. Schmalfeldt was charged with both Harassment under §3-803 and Misuse of Electronic Communication under §3-805. Even though he was on notice and had had criminal harassment charges filed, Schmalfeldt kept sending me tweets and addressed a blog post to me—not a post about me, one addressed to me.
At midday on 18 February, 2013, during his Internet radio broadcast, Schmalfeldt made the following threat at around 1:02:40 into the program:
It’s all horseshit. It’s all absolute horseshit. And I and my family have been put through pain and suffering because Lee Stranahan has a grudge. Because somebody, in my opinion, is paying Lee Stranahan to file these charges against me, in the hopes that I will either break or die. I got some fucking news for you, Stranny [pause] Walker, Hoggy, Frey [pause] and Frey [pause] beware the Ides of March.
Here is an mp3 file of the threat.
If Schmalfeldt were not associated with Team Kimberlin, I would have taken that threat as empty bloviating. But, given his connection to Kimberlin, the persons threatened, and our upcoming schedules, we all took the threat seriously. You see, the Ides of March fell during the Conservative Political Action Conference this year, and three of the persons threatened planned to be at CPAC and to attend BlogBash. BlogBash is a blogger party/awards ceremony that is loosely associated with other events, one of which is the CPAC. As it turned out, there were additional threats made to BlogBash which caused the PG County Police to beef up security around the event. So I was not the only person to take such a threat seriously.
After he was charged on the 18th, he sent an additional 31 tweets. This the last of those tweets, time stamped at 8:17 am ET, Schmalfeldt sent out prior to being served with the peace order:
LiberalGrouch I wonder what @wjjhoge got by way of payment. Something to comb out the poop flakes from his beard? Hah. I kid. I’m a kidder. I kid that way.
1:17 PM Feb 17th from web
Aside from the juvenile attempt at potty humor, this tweet implies that I have been lying about being paid to blog or making money off donations or that I’ve been helping my friends Lee Stranahan and Aaron Walker from any motivation other than friendship. Let me state this very clearly: Until I recently set up a tip jar after my retirement from working full-time, I had never been paid to write anything on this or any other blog. Even today, I have never received any donation or benefit from any of the bloggers or organizations I have promoted on this or any other blog. This blog is a hobby and an expensive one. I have personally borne all of the expense associated with it, including legal costs. I’ve been able to do this because, until the end of May, I have had an above average income working in a very senior engineering position. I’m getting old and have now retired from full-time work. I’ve put up a PayPal tip jar and and Amazon Associate’s link. In the first two weeks, I’ve earned almost as much money as I net from 0.2 hour of part-time work at my current billing rate. If I’m lucky, I may earn enough to keep up with the web hosting expenses for this site.
On 19 February, 2013, the Breitbart Unmasked website published a post with Schmalfeldt’s Liberal Grouch byline. This was not a post about me. It was a post addressed to me. The about versus to is an important distinction. Bill Schmalfeldt, or anyone else for that matter, has a First Amendment right to write and speak about me (assuming he can stay with in the bounds of defamation or illegal threats), but he has no right to speak to me. I have a right to be left alone. The headline addressed the post to me by name:
Stranahan. McCain. Akbar. Worthing. Hoge. Frey. THIS IS ON YOU!
The post contains the following:
Will it make you feel more like a man instead of some crawling thing, Hoge?
Hoge. You are filth. You add nothing to the world. You are a stain. You know it. I know it. And that is why I must be killed.
Neither I nor, so far as I know, any of the others addressed in that post have ever threatened Bill Schmalfeldt.
Because these annoying and alarming communications directed to me continued after I had demanded that they stop, continued after the demand was tacitly acknowledged, and even continued after I had filed a harassment charge, I filed for a peace order on 21 February, 2013, and a temporary order was granted by Judge Rasinsky. According to the report from the Howard County Sheriff’s Office (as reported to me by the Carroll County Sheriff’s Office), Schmalfeldt was served at approximately 9:15 am on 22 February, 2013. At or around 9:17 am on that date, he sent the following tweet:
LiberalGrouch A person who I will refer to by the pseudonym “Hoggy” has served me with a Peace Order. Two very nice Sheriff’s deputies just dropped by.
During the hearing for the permanent peace order on 28 February, 2013, Schmalfeldt authenticated all of the tweets, blog post material, and audio presented to the Court. However, Judge Rasinsky did not understand that Schmalfeldt had sent a tweet that acknowledged the notice to cease and desist, and Schmalfeldt lied, saying that he had received no notice. Lacking notice, Judge Rasinsky did not issue the permanent order, but he put Schmalfeldt on notice to stop:
The warning I want to give you is very specific, and it’s not an unusual warning for me to give. The battle line is drawn. He doesn’t want to hear from you, and that means no specific things addressed to him. If I was convinced that you had been put on notice and there were a course of conduct specifically addressed to him, I believe that that is something in the ordinary context of events that this statute would cover. Ah, I didn’t write the statute, but it’s constitutional up to this point, and it can circumscribe various freedoms that you might, in fact, have. Plus, it can also subject you ultimately, as it already has, to a criminal case where you may or may not win, I don’t know, [inaudible] look at the criminal case. I have it here. [inaudible] You’ve got to ask yourself, “Is it worth it?” You may conclude that it is. Some people, ah, are willing to go to jail for their beliefs, but I see that as a risk in this, ah, ongoing exploration of Internet First Amendment rights. Just a thought to share with you. I’m not going to grant the Peace Order for the reason I stated, but you are on notice, and hopefully, ah, you’ll abide by the conditions that Mr. Hoge has imposed in terms of your contact with him, and, ah, continue your debate in a peaceful, civil, and legal manner.
While I was exiting the courtroom after the hearing, I overheard a very loud conversation between Tae Kim (Schmalfeldt’s counsel), Bill Schmalfeldt, and Brett Kimberlim informing them that they had been lucky that day but could expect to go to jail if they kept up the harassment. This conversation was also overheard by two other witness.
Judge Rasinsky explicitly rejected Schmalfeldt’s contention that as a journalist he has a right to continue to “ask questions” of someone after being told to cease and desist. However, in another peace order hearing in Howard County (Walker v. Schmalfeldt), Judge Zwaig ruled, in what seem to be an odd extension of New York Times v. Sullivan, that Aaron Walker was enough of a public figure that he had to put up with Schmalfeldt’s harassment. In both cases, Schmalfeldt’s lawyer argued that he was a journalist entitled to some sort of special protection.
During early March, Schmalfeldt had continued communicating with me in spite of Judge Rasinsky’s warning. I filed for a second Peace Order. At the final hearing on 25 March, 2013, Judge Ellinghaus-Jones ruled that because the communications were electronic, she could not issue a peace order. After beating that peace order, Schmalfeldt, believing that he could do whatever he pleases, kept up tweeting. During that hearing, Mr. Kim argued the neither his client nor I were journalist but that we were a couple of old cranks having a shouting match on the Internet.
So as of the end of March, Bill Schmalfeldt was able to brag that he had beaten three peace orders. Once by lying and twice by alternately claim that he was or wasn’t a journalist. In mid April, the Carroll County States Attorney’s Office decided not to prosecute any of the charges filed against Scmalfeldt that were related to the peace orders, their reason being that if I couldn’t convince a District Court judge to a clear and convincing standard, they wouldn’t convince the same judge beyond reasonable doubt. The State’s Attorney’s Office did tell me that the charges could be refiled if I were to win a peace order on appeal.
Because I believed that I had air-tight documentation to refute the lie about not being on notice, I appealed the first peace order to the Circuit Court. During the District Court hearings, I had represented myself. I hired a lawyer (Zoa Barnes) to handle the appeal. As part of that appeal, she subpoenaed documents that might be shed light on Schmalfeldt’s motivation to harass me. His lawyer filed a Motion to Quash the subpoenas. The Gentle Reader who has been following this saga may remember that Schmalfeldt was subpoenaed for documents and as a witness for the Hoge v. Kimberlin peace order appeal in May and that he didn’t bother to provide the documents or show up to the hearing. Mr. Kim also filed a Motion to Dismiss based on the same electronic-harassment-isn’t-covered argument that worked in the District Court.
It didn’t work with Judge Stansfield today, and he quickly threw out the Motion to Dismiss. Rather than argue the Motion to Quash, my lawyer asked if Schmalfeldt had brought the subpoenaed document. He hadn’t, so the judge ruled the motion moot, and the hearing began.
After opening statements by the lawyers, I took the stand and outlined for the judge (with greater detail) the facts you’ve just read. On cross examination, Mr. Kim tried to make the case about my “wanting to get” Brett Kimberlin. I replied that the case was based on Bill Schmalfeldt’s behavior toward me. And the petitioner rested.
Bill Schmalfeldt took the stand on his own behalf. He misrepresented Twitter’s Rules and Best Practices about the use of @Replies, but my lawyer had already introduced Twitter’s actual rule into evidence, so the judge was not misled.
During his closing argument, Kim brought up a federal case, U. S. v. Cassidy, that he tried to use a precedent for a First Amendment defense of Schmalfeldt. As Ms. Barnes pointed out, that case was not gemane; it deals with whether Internet harassment is covered under the Violence Against Women Act.
Judge Stansfield ruled in my favor. He found that Bill Schmalfeldt engaged in a continuing pattern of conduct to harass or annoy me, that he continued to do so after being told to stop, and that he did so without any lawful purpose. He also found that Bill Schmalfeldt was likely to continue that behavior and, on that basis, he issued a peace order.
What does that mean?
First, Bill Schmalfeldt has been adjudicated as a harasser.
Second, if he doesn’t leave me alone for the next six months, he can be charged with a crime.
What does it not mean?
It doesn’t mean that the First Amendment is trouble, at least not because of this ruling. Bill Schmalfeldt is still free to write about me so long as he steers clear of threats or defamation. He simply needs to stop addressing me directly.
It does not mean that any Twitter user is in any jeopardy as long has he abides by Twitter’s Rules and Best Practices if he has been told to stop bothering someone else.
As I’m finishing this post, the Cabin Boy is frothing at the keyboard about how his loss in court may shutdown Twitter and end online journalism.
My final word is this—
UPDATE—One more thing … Bill Schmalfeldt has written in the past of how the District Court judges dealt with me. I wish to state that much of what he wrote is categorically untrue. At all times while I was in their courtrooms, Judges Effinghaus-Jones and Green acted professionally and treated me with respect. Indeed, I was particularly impressed with Judge Green’s demeanor and the kindness he showed to everyone who appeared before him.
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He should have quit while he was only one loss behind.
Brett Kimberlin is a liar. The TKPOTD for eight years ago today cites on example.
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Brett Kimberlin has been caught telling lies many times. When his biographer Mark Singer asked him about a particular item, he told Singer that he had admonished someone else about lying.
The notion of Kimberlin admonishing anybody not to lie both amused and galvanized me; I had no choice but to retrieve from storage the transcript of Sandi’s testimony. On pages 4532 and 4561, I located the colloquy that confirmed what the Chicago Reporter and the Indianapolis News had reported. Confronting the naked evidence of this particular deception left me feeling momentarily deflated, if not downright insulted. Did Kimberlin think I was stupid? Getting an appointment at the federal archive proved a mild inconvenience, transcript copies cost fifty cents a page, and I had to hire someone in Chicago to go to the archive and pick up the pages—but I’d had rougher days at the office. Did he think I was lazy? How could I maintain my presumption of his innocence, or my refusal to acknowledge his guilt, if he insisted on lobbing fat juicy ones in the vicinity of my overhand smash? What next—a confession? Hardly likely, I reassured myself. This had been a glaring lapse by Brett, but as long as I remained in character—a talented amateur, never quite able to see into the heart of the game—we could keep the rally going.
—Citizen K, p. 327
I don’t know if Brett Kimberlin thinks other folks are stupid so much as he believes that he is enough smarter than the average bear that he can spin yarns that won’t be seen through. But some people are not only smart, they’re industrious enough to search for documents. And these days it doesn’t take much google-fu to find out a lot of stuff about someone.
Mark Singer caught Brett Kimberlin in so many lies that he concluded that Kimberlin’s story about selling marijuana to Dan Quayle was a lie too. But that should be no surprise. Perjurers tell lies.
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Brett Kimberlin has sued me four times claiming that my truthful reporting about him was defamatory. He lost all four times.
One of the ways that Team Kimberlin has attempted to harass people who’ve written about them is by filing false copyright complaints; One of these days, I should probably add up all of the ones filed against me—like the one covered in this DMCA Legal LULZ Du Jour from four years ago today.
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I received this email from WordPress yesterday afternoon—
IIRC, all of the images that the Cabin Boy™ bitches about in his DMCA notice were published on Twitter. That gives other Twitter users a royalty-free license to republish them. Now, I don’t know whether all of the commenters involved have Twitter accounts, but even use by someone who isn’t a Twitter user or use of an image not published on Twitter would probably be covered by Fair Use as noted in Twitter’s email.
BTW, it was a righteous DMCA notice concerning an image that the Cabin Boy™ foolishly used that forced Breitbart UnmaskedBunny Billy Boy Unread to flee to an off-shore server.
Failing failures gotta fail.
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Team Kimberlin has never prevailed in any claim against me. I, on the other hand, have won a few, and I’m not done with them yet.