Team Kimberlin Post of the Day

Bill Schmalfeldt has been whining over the past few days about the terse filings my lawyer Zoa Barnes has made in answer to his motion to stay the peace order issued against him pending appeal and his petition for a writ of certiorari to the Court of Appeals. This isn’t surprising behavior from a pro se litigant who is apparently being advised by a jailhouse lawyer.

All that is required in those answers are denials of the “facts” or interpretations of law that the Cabin Boy offered.

If the Court of Appeals takes the case and, given the shakiness of Schmalfeldt’s arguments, my lawyer and I consider that a pretty big if, the Court may ask for briefs. In the normal course of events mine would be filed in response to the Cabin Boy’s and then he would have an opportunity to file one more brief before the Court heard oral arguments. If briefs are called for, mine will be filed as the Court directs. Until then, I don’t plan to give Schmalfeldt any further information that might be used to his advantage.

Also, the Circuit Court will soon hold a hearing on Schmalfeldt’s motion to modify the peace order. Ms. Barnes will present our side of the case at that hearing, and I don’t plan to comment any further about it other than to say that I believe we will prevail in that hearing. Why would I tip the Cabin Boy off to our arguments so that he can be better prepared against me?

Until the two courts take their decisions, I do not wish to discuss the merits of the cases beyond saying that I expect to win.

Stay tuned.

A Comment on Not Commenting

There is a great deal that I could say about, for example, the pending court matters in the Hoge v. Schmalfedt peace order case and the Schmalfeldt v. Hoge appeal of the peace order. I could publish the various motions and such that have been filed and comment on the contents of each one. Looking the history of traffic to this blog leads me to believe that the number of hits the site receives would increase significantly it I were to post such things.

So why not?

Because I’m a party to those cases, and, as a party, I believe I should put my side of the case before the appropriate court and not try the case on the Internet. I have no objection to someone else who thinks the cases are newsworthy writing about the them. However, any comment beyond acknowledging that a filing was made or stating that I expect to prevail in the case is not in my best interest. The papers filed with the courts do not show everything my lawyer and I know or will eventually have to say about the cases. The bulk of the evidence and arguments are saved for use in hearings, and I have no desire to improve my adversary’s game by showing him my hand.

The Gentle Reader should remember what has transpired thus far. I brought the Hoge v. Schmalfeldt case in February and lost in the District Court. I appealed for a trial de novo in the Circuit Court and finally won the case in June. For the 3-1/2 months between the two trials I put up with a great deal of harassment. I let Bill Schmalfeldt rant while I waited patiently. I did not publicly discuss any significant details of the case. And I won. Only after that win in the Circuit Court did I offer my side of the case in any detail.

I’m sticking with that strategy.

I expect that the Court of Appeals will deny Schmalfeldt’s motion to reconsider their denial of a stay of the peace order. I expect that the Circuit Court will deny his motion to modify the peace order. I have no expectation one way or the other concerning the Court of Appeals granting a writ of certiorari and actually taking the appeal.

I could be wrong. We’ll see, but don’t look for any detailed comments about pending matters from me until after a court ruling.

BTW, I will most likely use the same strategy as one of the et al. in Kimberlin v. Walker et al.

#BillSchmalfeldt is a Liar

Cabin Boy Bill has posted what appears to be the text of an email to the Howard County State’s Attorney’s Office about Aaron Walker. In describing Aaron Walker’s presence at the three recent hearing in the two Hoge v. Schmalfeldt peace order cases, Schmalfeldt writes:

Walker sat right at Hoge’s side through all of this.

That is not true. At both of the District Court hearings (28 February and 29 March), I represented myself. I was alone at the Petitioner’s table in the courtroom. Mr. Walker was sitting in the public gallery. He was there for two purposes. First, although it turned out that his testimony was not necessary, he was a potential witness. Second, he was there in order to be able to blog  about what he saw. The Gentle Reader will notice that from the time I filed a complaint against Bill Schmalfeldt until I won the case in Circuit Court, I refrained from making any substantive comment about matters concerning the two of us that were before the courts. Just as I had written about Aaron’s cases last year, he has written about mine this year.

Aaron Walker was also present during the Hoge v. Schmalfeldt appeal in Circuit Court this month. He was there for the same two reasons. I was ably represent by Zoa Barnes at that hearing, and I sat with her at the Petitioner’s table. Aaron sat near the back of the courtroom on the opposite side from where Brett Kimberlin sat.

In one sense, my friend Aaron Walker has been at my side through all this nonsense with Bill Schmalfeldt. More important, he’s had my back. And so have a lot of other people—if I tried to name them all, I’d probably screw up and forget some of them, but they know who they are. I want to thank all of them.

Schmalfeldt is not only a liar, he’s a loser. The Circuit Court reversed the findings of the District Court in the first Hoge v. Schmalfeldt peace order case. In throwing out Schmalfeldt’s Motion of Dismiss, it effectively ruled that the District Court erred in it’s dismissal of the second peace order case. (I didn’t appeal that case because I felt certain of winning the appeal of the first. Why go to the expense of a redundant peace order appeal?) The Circuit Court found that Schmalfeldt did, in fact, engage in the harassment underlying the peace order petition. The related criminal charges were nolle prossed by the State’s Attorney’s Office. Nolle prosequi is not an adjudication on the merits of the prosecution or on the guilt or innocence of the accused. It isn’t a guarantee that the defendant will not be later recharged. Indeed, prosecutors use nolle prosequi instead of outright dismissals so that a defendant may be recharged without running afoul of a double jeopardy claim. Schmalfeldt has never been found not guilty; he has only temporarily beaten the rap. Now that a higher court has found that Schmalfeldt engaged in harassment, the State’s Attorney could recharge him with a reasonable expectation of getting a conviction in the District Court.

Bill Schmalfeldt is huffing and puffing about legal action again. Before he brings a lawsuit against anyone, he should consider that a plaintiff who does not cooperate with the discovery process can expect to have his case dismissed with prejudice.

He can huff and puff all he pleases. If he’ll look at the pictures of my house he downloaded, he’ll see that I’m the one who lives in a house made of bricks.

UPDATE—Any decision to recharge Bill Schmalfeldt is a matter for the Carroll County State’s Attorney’s Office. Their decision to nolle pros the cases was based on the failure of the related peace order petitions in the District Court where the same judges would try the criminal cases. I was told that a successful appeal might lead them to reevaluate the cases.

My appeal was successful. The State’s Attorney’s Office has the option of refiling some or all of the charges.

I am gratified to know that the Cabin Boy intends to share this post with the Howard County State’s Attorney’s Office, but I don’t understand why. This post documents one of the falsehoods that he uses to try to establish that Aaron Walker has practiced law in Maryland. That may tend to diminish his credibility with the State’s Attorney’s Office. Moreover, it’s one thing to have a hazy recollection of a past event, but it’s quite another to get a whole story substantially wrong. There’s enough provably false material in his email that the Cabin Boy may have bought himself some trouble. See Md. CRIMINAL LAW Code Ann. § 9-503. The idea that Aaron Walker was practicing law in Maryland in the Kimberlin v. Allen case was also part of a accusation Brett Kimberlin made in a bar complaint in Virginia last year. I’ll bet that the Virginia State Bar will be willing to share their findings with their Maryland colleagues. They found the complaint to be baseless.

I’ll also point out that a Circuit Court has found that he has engaged in harassment. If memory serves, the Howard County charges against Schmalfeldt were nolle prossed as well. Is he trying to get the Howard County State’s Attorney to reexamine the complaints by Lee Stranahan and Aaron Walker in light of the Carroll County finding?

As to a malicious prosecution lawsuit such as the Cabin Boy has mentioned, one of the elements he would have to prove is a lack of probable cause in the criminal cases. The Circuit Court’s finding that he engaged in harassment would support that I had probable cause to believe that he was engaged in harassing me by various means. Wouldn’t that gut any potential case?