Tag Archives: Fifth Amendment

Defects in Red Flag Laws

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The obvious objection to most red flag laws is based in the Second Amendment. IANAL, but it seems to me that they also infringe on rights secured by the Fourth Amendment (“The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated …”) and the Fifth Amendment (“No person shall be … deprived of life, liberty, or property, without due process of law …”). Don’t firearms count as “effects” or “property”?

Well, He Does Have the Right to Remain Silent

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Of course, Joe Biden often doesn’t have enough good sense to keep his mouth shut, but it’s reported that he said that he won’t voluntarily appear if he is called as a witness during a Senate impeachment trial of President Trump.

Imagine the following scenario—Biden refuses to appear when subpoenaed, so the Senate sends its Sergeant of Arms to arrest him and bring him to the chamber to testify. And then Biden invokes his Fifth Amendment right to remain silent. The Gentle Reader may speculate on the effect that might have on the Democrat presidential primaries.

Don’t Know Much About History

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A writer for Teen Vogue tweeted this—I, on the other hand, have been falsely accused of a crime, so I have a different appreciation for the presumption of innocence. Ms. Lindin seems all to willing to take away someone else’s civil rights if that means achieves her desired end. If she thought … oops, wrong word … imagined her own rights were on the line, I doubt that she would be willing to pay that price.

No young women from Salem, Massachusetts, were available for comment.

#FascistTwit

UPDATE—The lessons of history teach that these folks will be granted all possible due process rights—

Team Kimberlin Post of the Day

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I’m not making this up, you know.

After spending years trying to use the courts to suppress the First Amendment rights of people who have written truthful things about him, Brett Kimberlin included this sentence in his failed motion to unseal his informal opening brief in his appeal of the Kimberlin v. Frey RICO Remnant LOLsuit—

Appellant has a right under the First Amendment to appeal in public.

No. He doesn’t. His right to a public trial and, by extension, a public appeal is not secured under the First Amendment. IANAL, but the last time I checked the Bill of Rights, due process rights are secured by the Fifth Amendment.

Patrick Frey’s due process rights are also protected by the Fifth Amendment. His lawyers were able to convince a federal judge that certain information given to The Dread Pro-Se Kimberlin during discovery in the RICO Remnant LOLsuit should have been sealed in order to protect Frey’s rights (and possibly the rights of third parties). TDPK repeatedly asked the District Court to unseal that information, and he was never able to provide a reason why Patterico’s rights should not have been protected.

TDPK’s motion to unseal is timestamped as being received by the Fourth Circuit Court of Appeals at 10:06 Monday morning. The order denying his motion was docketed at 12:01:59 Tuesday afternoon. It didn’t take the court long to see through his frivolous argument.

Everything is proceeding as I have foreseen.

Team Kimberlin Post of the Day

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A deposition of Tetyana Kimberlin had been scheduled for next week, but she has invoked her Fifth Amendment privilege—as is her right.

This particular filing deserves some commentary. IANAL, but I’ve been in communication with some, and I believe I am correctly reporting their analysis.

First, one doesn’t move to quash a deposition. A party seeking to limit or avoid a deposition files for a protective order. The Kimberlins did file for one, and it has not been granted. They are obliged to cooperate fully with discovery until a protective order is issued. A pending order that may never be granted does not stay discovery.

Second, Brett Kimberlin filed the motion along with Tetyana, but he has no standing in the matter.

Third, marital privilege is more limited that the Kimberlins appear to believe. It doesn’t allow one spouse to refuse to testify against everything about the other.

Fourth, pleading the Fifth prevents a deponent from having to answer questions which may tend to incriminate him or her, but dropping the nickel has other significant ramifications in a civil matter.

Fifth, the Kimberlins whining that it is unfair for them to be held to the Rules is getting to be a boringly common refrain. It is not unfair for Aaron Walker to fail to attend a deposition when he was not properly served with notice, and it is would not be unfair to require Tetyana Kimberlin to be deposed when she was given proper notice.

Finally, Tetyana Kimberlin is within her rights to refuse to be deposed because her testimony might incriminate her. The facts alleged against her establish the elements of several crimes as well as the civil tort of malicious prosecution.

That Pesky Bill of Rights

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I’m old enough to remember (now, there’s a line that getting a lot of work these days) when folks on the Left were all for the Bill of Rights. The narrative back then was that it was the Right that opposed free speech or due process. Today, many of the generation that marched in the streets in the ’60s have risen to become part of the Establishment. It seems that many a former “revolutionary” no longer want to stick it to the Man now that he has become the Man. So we have recently had a bunch of geezers sitting in the well of the House of Representatives demonstrating in favor of a bill to suppress the Fifth Amendment right to due process and the Second Amendment right to keep and bear arms. Somehow, they seemed braver when they were sitting at lunch counters five decades ago.

The First, Second, and Fifth Amendments are now under overt attack. The Fourth Amendment is a target as well. Those of us who still think that the Bill of Rights is worth keeping need to keep hitting back. I suggest that we do not limit ourselves to only twice as hard.

One more thing … why are they going on about rifles now? Fifty years ago, it was all about “Saturday Night Specials,” inexpensive handguns that the wrong people could afford for self-protection. Now, it’s rifles: “Military-style” “weapons of war.” It’s almost as if someone is afraid of an armed populace that would be able to resist …

More “Discovery”

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As part of discovery in the Kimberlin v. Walker, et al. nuisance lawsuit that The Dread Pro-Se Kimberlin lost this week, I sought discovery of documents.

You can see from TDPK’s answers beginning with number 13 that he thought that he would control what evidence would be introduced. He wound up being correct only because the case folded before we put on our defense.

I’m sticking by my theory that TDPK didn’t testify because he wanted to avoid being trapped between perjury and the Fifth Amendment when confronted with some of the issues raised in my request for documents.

popcorn4bkHe still has time to drop his Kimberlin v. The Universe, et al. RICO Madness before things really hit the fan in that case. Is he smart enough?

We shall see.

Stay tuned.

Team Kimberlin Post of the Day

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There’s been a lot of speculation about why Brett Kimberlin fought so hard to be able to testify and then kept himself off the witness stand. Gentle Reader, your guess is as good as mine, but I’m betting on fear of being trapped between perjury and the Fifth Amendment during cross examination. You see, he probably understood that he would be asked many of the same question that were in our discovery interrogatories.

One of the basic rules of examining a witness at trial is never to ask a question unless you already know the answer. That’s not true in discovery. The purpose of asking questions is to develop information that may lead to evidence that can be introduced at trial. However, that doesn’t mean that my lawyer and I did not already know the answers to my discovery interrogatories. We may have been looking for confirmation.

Still, some of TDPK’s statements during hearings or the trial or during proceedings in other courts appear to contradict his sworn statements made in answer to these interrogatories. In Maryland, contradictory sworn statements knowingly made about a material fact constitute a prima facie case of perjury.

Team Kimberlin Post of the Day

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The Dread Pro-Se Kimberlin is refusing to answer the interrogatories posed by Aaron Walker, Stacy McCain, and me or my request for production of documents for our defense of the his Kimberlin v. Walker, et al. nuisance suit, in some cases invoking his Fifth Amendment privilege against self-incrimination.

He’s afraid to provide stuff like this—RPOD-17Hmmmmm.

Team Kimberlin Post of the Day

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The Dread Pro-Se Kimberlin doesn’t want to answer the interrogatories that I sent him as part of discovery in the Kimberlin v. Walker, et al. nuisance suit. For example—InterrogObjectionCitizenKIrrelevant to the case? Really? I thought TDPK was suing me because he says I have called him a pedophile. This is from his complaint—BK v AW Complaint-27

This is found on page 78 of Citizen K:

His [Kimberlin’s] attachment to Jessica was quite a different matter. Their weekly after-school outings, Kimberlin said, were “very special days” for her. … For three consecutive summers, 1974 through 1976, they took vacations for a week or longer in Disney World, Mexico, and Hawaii. Sandi [“Jessica’s” mother] couldn’t get time off from work, so on these summer trips it was just the two of them—Brett and Jessica.

Eyebrows levitated. A drug-dealing colleague had memories of conversations with Kimberlin that struck him as odd: “We’d see a girl who was pubescent or prepubescent, and Brett would get this smile and say, ‘Hey, what do you think? Isn’t she great?’ It made me very uncomfortable.” Another recalled Kimberlin introducing Jessica as “my girlfriend,” and if irony was intended, it was too subtile to register.

<sarc>Nothing to see here. Move along.</sarc>

#BrettKimberlin Takes the Fifth

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The Dread Pro-Se Kimberlin has invoked his Fifth Amendment privilege against self-incrimination rather than properly respond to some of the interrogatories or requests for production of documents from the defendants in his vexatious Kimberlin v. Walker, et al. lawsuit. He is attempting to invoke other privileges as well.

More later.

UPDATE—Here are my responses to the interrogatories from TDPK:

Dread Pirate #BrettKimberlin’s Day Job

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The Dread Pirate Kimberlin has what passes for a day job as Director of Justice Through Music Project. He has been sent interrogatories concerning that work as part of the discovery process in the Virginia Walker v. Kimberlin, et al. civil suit.

<mockery>Here is the interrogatory related that day job:

8. Please describe your involvement the organization Justice Through Music Project, including your:
a. Position
b. Duties in promoting the organization
c. Involvement in its day to day operations
d. Involvement in its fundraising activities
e. Salary
f. Other compensation including travel reimbursement etc.

In his motions filed since he was served with the discovery interrogatories, TDPK has claimed that he has a Fifth Amendment right not to respond. This leads one to wonder what about truthful answers would lead to a reasonable apprehension of criminal liability by TDPK.

If it’s an honest job … </mockery>

Well, we’ll see how discovery has gone this Friday.

Tick, tock, tick, tock, …

Dread Pirate #BrettKimberlin and the Fifth Amendment

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Dread Pirate Kimberlin has been claiming that the Fifth Amendment grants him absolute immunity from discovery in the Virginia Walker v. Kimberlin, et al. lawsuit. IANAL, but folks who are tell me that he’s wrong, at least about absolute immunity.

While poking through some Mr. Kimberlin’s other court filings, I found something that tends to indicate that he doesn’t believe that the Fifth Amendment should apply to his opponents in court.

Back in April, there was a trial in Montgomery County (MD) Circuit Court on one of the Kimberlin v. Walker Peace Orders. Brett Kimberlin put on such a poor case that Aaron Walker’s lawyer rested the defense without presenting any evidence. Then the judge ruled in Mr. Walker’s favor.

Mr. Kimberlin has appealed to the Maryland Court of Appeals (that’s the state’s highest court) for a writ of certiorari. Note that Mr. Kimberlin’s home address has been redacted.

One of the issues Brett Kimberlin tries to raise is that he was not allowed to question Mr. Walker during the Circuit Court trial. He asserts a theory that, since Mr. Walker was the appellant in the case, he had to present evidence. However, since the appeal was a trial de novo, the burden was on Mr. Kimberlin to prove that a peace order was warranted. Mr. Walker enjoyed a presumption of innocence.

What really happened was this: Among the mistakes he made in the trial, Mr. Kimberlin tried to introduce unauthenticated documents into evidence. The judge, following the rules of evidence, refused to allow it. When Mr. Kimberlin figured out that he could ask Mr. Walker under oath to authenticate the documents, he assumed he could do so during cross examination. When Aaron Walker did not have to put on a defense because no case had been made against him, Mr. Kimberlin’s plan was ruined. But if he had been called, Aaron Walker would have been within his rights to refuse to authenticate the documents if they were incriminating. BTW, they weren’t. (I should also note that in the 5 July trial for another Peace Order, Mr. Walker was willing to authenticate postings he had made, but the judge found that the documents didn’t support Mr. KImberlin’s claims in that case.)

The court’s upholding Mr. Walker’s due process rights is not the same thing as denying Mr. Kimberlin’s rights.

IANAPsychologist, but given what seems to be Mr. Kimberlin’s failure to conform to social norms, his repeated lying, his irritability and aggressiveness, his consistent irresponsibility in his failure to recognize his financial responsibility to Mrs. DeLong, and his lack of remorse, … oh, never mind. I believe he’s a menace and that the sooner he’s brought to justice, the better.

Meanwhile, we’ll soon see if Mr. Kimberlin feels that he needs to exercise his Fifth Amendment right to avoid self-incrimination in order to keep from committing perjury during the upcoming discovery in the Virginia case of Walker v. Kimberlin, et al., and we’ll see if the Maryland Court of Appeals grants him a writ of certiorari.

Tick, tick, tick, tick, …