Team Kimberlin Post of the Day


One of the reasons that I (sort of) jokingly refer to Team Kimberlin getting their legal advice from the same outfit that sells stuff to Wile E. Coyote is that the theories they advance are usually as harebrained and effective as all those fine Acme products. Six years ago, I became the first of several individuals to hold Bill Schmalfeldt accountable for his online harassment, and he spent most of 2013 trying to figure out how to get that first peace order issued against him set aside. This Prevarication Du Jour from six years ago today dealt with one of his failed approaches.

* * * * *

ftrrnews201310092359ZDoes Eugene Volokh agree with Bill Schmalfeldt’s interpretation of U. S. v. Cassidy? Well, it’s certainly true that Prof. Volokh agrees that writing about someone on the Internet is protected speech. But how about writing to someone? I’ll let the good professor speak for himself. Here’s what he had to say when writing about the patently unconstitutional peace order Brett Kimberlin secured against Aaron Walker last year, an order that forbade Mr. Walker from writing about Kimberlin—

The old narrow restrictions might well be constitutional (see, e.g., Rowan v. U.S. Post Office Department), but precisely because they deal with essentially one-to-one speech — restricting such unwanted speech to an unwilling listener leaves the speaker free to keep talking to other, potentially willing listeners.

Of course, it is just that sort of one-to-one speech that the Cabin Boy engaged in after being asked to stop which violated Maryland’s harassment law. Prof. Volokh also notes that

[p]erhaps a specific statute that bars the deliberate sending of one-to-one messages to a person who has asked that the messages stop, or who would otherwise clearly be substantially distressed by the messages, might be constitutional.

So it looks as if Prof. Volokh might agree that old-fashioned harassment statutes apply to behavior on the Internet just as they do in the real world. Perhaps the Cabin Boy should ask Eugene Volokh to file an amicus brief.

* * * * *

In fact, Eugene Volokh did wind up filing an amicus brief in one of the Kimberlin case. He filed it in support of Aaron Walker, and as I understand his brief, he agrees with the point of view I expressed in my post.

Team Kimberlin Post of the Day


One of the fouler forms of attack suffered by the Team Kimberlin’s critics (and quite often by bystanders caught by Bill Schmalfeldt’s poor aim) was online harassment. Although he wasn’t the first and may not have engaged in the very worst acts, Schmalfeldt was the most prolific of the Team Kimberlin harassers. One of my early contributions toward bring some justice to Team Kimberlin was being able to secure a peace order (that’s what Maryland calls a restraining order between two non-related persons) against the Cabin Boy™.

Brett Kimberlin hired a lawyer to handle Schmalfeldt’s defense, but after the order was issued, Schmalfeldt was on his own for his appeal and other subsequent legal actions. Six years ago today, we were in the throws of his appeal of that first peace order, and this post chronicling one aspect of his legal ineptness appeared. BTW, it was only the third of what has become a long series of posts titled Prevarication Du Jour.

* * * * *

frr201310041321Zpre·var·i·cate intransitive verb \pri-ˈver-ə-ˌkāt, -ˈva-rə-\ : to speak or act in an evasive way.

If Bill Schmalfeldt can’t find the tweet that I sent him on 15 February, it’s because he isn’t looking very hard. It looked like this:cease tweet

If he had typed “oldunclebastard,” the Twitter handle he was using in mid February, into the search box on the upper right here at Hogewash!, he would have found the post linked to in the tweet— TK&3-805The tweet and the blog post were among the evidence introduced in both the District Court and Circuit Court trials.

During the District Court trial, the Cabin Boy implied that he never received that notice. It appears that he lied. During the Circuit Court trial, a tweet was introduced into evidence to prove that Schmalfeldt was aware of the notice.oub201302151837Z

The link shown in that tweet goes to the post shown above, demonstrating that Schmalfeldt was aware of my demand for him to stop contacting me. He continued to do so in ways that harassed, alarmed, and/or seriously annoyed me in violation of the Maryland harassment statute, and the court found that he did so without any lawful purpose. That’s why he was adjudicated a harasser, and that’s why a peace order was issued.

Sigh.

LAST MINUTE ADDITION—Schmalfeldt has begun to try to weasel his way out of this one.frr201310041514ZHe says he doesn’t remember either the tweet or the blog post that were a major pieces of evidence in two trials in which he was the respondent.

Uh huh.

Could it be that the Cabin Boy is trying to use his “forgetfulness” to set the groundwork for some sort of twinkie defense?

* * * * *

It has been remarked that a Twinkie is unlikely to be able to defend itself against Bill Schmalfeldt.

OTOH, the Cabin Boy™ really did try to enter a diminished mental capacity plea once, but he withdrew it when the judge informed him that she would order him to undergo an involuntary hospitalization for a psych evaluation.

Team Kimberlin Post of the Day


One of the reasons for Team Kimberlin’s string of failure in the LOLsuits they brought to try to suppress the free speech rights of their critics is their ineptitude in court. Yesterday’s TKPOTD dealt with one example of that. However, their inability to present a coherent case to a judge or jury shouldn’t be a surprise to anyone who has experienced their incompetence presenting their stories on the Internet. Consider the TKPOTD from six years ago today.

* * * * *

BS201308311448ZjudgestansfieldAs the Gentle Reader can see in the tweet above, Sore Loserman Bill Schmalfeldt has been posting his complaints about a “bowtie [sic] wearing” conservative judge who ruled against him. Judge Thomas F. Stansfield of the Circuit Court of Maryland for Carroll County does often wear bow ties.

Here we have another example of Schmalfeldt’s careful, in-depth research.

Judge TitusThe Cabin Boy’s beloved U. S. v. Cassidy opinion was written by Judge Roger W. Titus (photo at left). Judge Titus was nominated by President Bush in June, 2003.

Of course, it is not only conservative jurists who wear bow ties. For example, here is the Supreme Court’s official photo portrait of Justice John Paul Stevens.justicestevensI can’t understand how Schmalfeldt thinks his strategy of attempting to try his various motions and his appeal on the Internet is supposed to work. For example, I’d never let anything like the following Twitter exchange see the light of day if I wanted to stay on the good side of the judge deciding my case.

BU:BS201308311408Z

Zoa Barnes is my lawyer.

I also wouldn’t have posted anything like this on a blog:

Hoge’s lawyer mopped the floor with us. The Circuit Court Judge sat, making “smoochy-eyes” at Zoa as she YELLED at me like a 3rd Grade Teacher to an errant student. Oh, my lawyer tried to get the judge to hear about how US v. Cassidy had a direct impact, but (and I hope I’m recalling this correctly), Zoa objected to Cassidy as irrelevant and the Judge sustained. So using the LAW as it applied in our case was out the door.

BTW, my recollection of the trial as refreshed by the audio transcript is that Ms. Barnes never raised her voice to Schmalfeldt and that she did not object to the Cabin Boy’s lawyer bringing up Cassidy. Indeed, she expected it to be raised and, when Schmalfeldt’s lawyer didn’t have a copy of the case for the court, she provided one for Judge Stansfield along with a clear explanation of why Cassidy had no application in Hoge v. Schmalfeldt. Judge Stansfield agreed.

It really seems that Schmalfeldt is making it up as he goes along and hoping someone important will believe his story. That won’t cut it when confronted in court by rules of evidence and the court’s procedural rules.

Acme Law at it’s finest!

UPDATE—I agree with The Doctor in the Comments—bow ties are cool.bowtie_me

UPDATE 2—Here’s a picture of Chief Judge (retired) of the Maryland Court of Appeal Robert M. Bell.RobertMBell

* * * * *

I’ve thought highly of Judge Stansfield’s judicial temperament since I observed his reaction to seeing a copy of those tweets by BU and the Cabin Boy™ in the evidence before him during the December, 2013, hearing on renewing the first peace order issued against Schmalfeldt. When he got the page with those tweets, his only reaction was raised eyebrows and a brief nod of his head.

I don’t think the Cabin Boy’s™ tweet helped his case.

Team Kimberlin Post of the Day


Essentially all of Team Kimberlin’s attempts to use lawfare to punish their enemies have backfired since the beginning of 2012. However, some of the pushback against them have been successful. One of the earliest successes was the granting of a peace order against Bill Schmalfeldt as a result of his online harassment of me. That success led to yet another failure of Team Kimberlin’s lawfare. Rather than quietly accept his lose in court, Bill Schmalfeldt appealed that first peace order. Six years ago today, I ran this post titled #BillSchmalfeldt Thinks He’s Appealing.

* * * * *

The question to be decided is whether or not the Maryland Court of Appeals will agree.

I received a Notice of Appeal from Bill Schmalfeldt in the Hoge v. Schmalfeldt peace order case.  I note that it was sent by Schmalfeldt himself and not a lawyer, so I suppose that means that he is proceeding pro se. I will be interested to see how well he does drafting his Petition for Writ of Certiorari to the Court of Appeals. My lawyer will, of course, be filing a Response, and we’ll see if the Court takes the case.

I doubt that Schmalfeldt has any real grounds for appeal. OTOH, the Court of Appeals might take the case in order to specifically clarify that electronic harassment is covered by the peace order statute.

Meanwhile, the Circuit Court’s order remains in effect.

UPDATE—Assuming the Court of Appeals takes the case, by the time certiorari is granted, briefs filed, and oral arguments heard, the Peace Order may have expired—making the case moot.

* * * * *

As the Gentle Reader who has been following The Saga of Team Kimberlin for a while may remember, Schmalfeldt failed to obey that peace order. As a result, it was extended, so it was in force longe enough for the Court of Appeals to reject his appeal—not for mootness but for lack of merit.

Everything proceeded as I had foreseen.

Team Kimberlin Post of the Day


Yesterday’s TKPOTD looked back five years at The Dreadful Pro-Se Schmalfeldt’s appeal of the extension of the first peace order issued against him. Today, we look back the following day’s TKPOTD.

* * * * *

It seems that the Cabin Boy™ is still getting his legal advice from Acme.@PatO201404292348ZWhere to begin? I guess I’ll just take it from the top.

1. Schmalfeldt did not file an “appeal brief;” all he filed was a Civil Appeal Information Report for the Court of Special Appeals. According to Md. Rule 3-803, one key item is missing from his petition. Since he’s pro se, the Court of Appeals may overlook the omission, but even if they do, he has raised no new legal arguments. Since he has given them no new reason to hear his appeal, I expect that they will deny his petition on the same grounds as they did last time.

2. Res judicata applies to the original peace order. That case is closed and not subject to relitigation. That matter is settled.

3. Schmalfeldt v. Hoge is on the Court’s Petition Docket. This only means is that the Clerk has received it and assigned it a tracking number. It does not mean that the judges have accepted the case for an appeal. If they do, it will be moved to the Regular Docket, and the case will proceed as the Court directs. In the unlikely event that the appeal is allowed, the next step is usually a round of briefing from the petitioner and respondent. We’ll see if it gets that far.

Stay tuned.

UPDATE—I’m told that the Cabin Boy™ is blabbering on teh Twitterz about how wrong I am.

Uh, huh

Like they say in the financial prospectuses, “past performance is not an indicator of future returns,” but it’s a safe way to bet. So consider how accurate Schmalfeldt’s predictions from 2013 of my crushing defeat in the appeal to the Circuit Court, my being clapped in irons (I found that one particularly amusing), or his quick victory in the Court of Appeals. You can believe Acme, or you can believe what real lawyers tell me. Either way, your belief will have no effect on what the Court does.

So chill.

And stay tuned.

* * * * *

Speaking of res judicata, The Hogewash Store has lots of mugs, t-shirts, and other tchotchkes available with the Res Judicata logo. There’s also junk branded Murum Aries Attigit, and Johnny Atsign. If you stop by, spend some money, and support this blog, I’ll be thankful.

Team Kimberlin Post of the Day


I was the first person to hold Bill Schmalfeldt accountable for engaging in online harassment. In February, 2013, I filed a petition in the District Court of Maryland for a Peace Order against Schmalfeldt, and my petition was denied. Now, in Maryland one is entitled by law to one appeal of an adverse judgement, and that appeal is to the next higher court in the system. Appeals from the District Court go to the Circuit Court in the county where the District Court trial or hearing was held. Appeals from cases originating in a Circuit Court go the Court of Special Appeals. Once, a first appeal is exhausted, one may file a petition for a writ of certiorari with the Court of Appeals, the state’s highest court, but that court does not have to grant a second appeal.

When that first peace order was granted on appeal by the Circuit Court, that was the end of the appeal process as far as the lower courts were concerned. However, Schmalfeldt filed an appeal with the Court of Special Appeals. That court kicked the paperwork upstairs (literally, the Court of Special Appeals is on third floor and the Court of Appeals is on the fourth floor of the State Law Library and Courthouse in Annapolis), and the Court of Appeals treated his pro se filing as a certiorari petition, which the court denied.

When the peace order was extended, Schmalfeldt appealed again—to the wrong court. Again. This post ran five years ago today.

* * * * *

Petition Docket No. 29 for the September, 2014, term of the Maryland Court of Appeals is Schmalfeldt v. Hoge, the Cabin Boy’s™ appeal of the extension of the peace order in place against him. His appeal paperwork (such as it is) is shown below. A respondent is allowed 15 days in which to answer a petition for a writ of certiorari. That time begins running either when the petition is completely filed (with any supplement) or, if no supplement is filed, when the time allowed for its filing runs out. The Cabin Boy’s™ time ran out yesterday without his filing a supplement, so I have until 13 May to file my answer.

I went by the Clerk’s Office at the Court of Appeals to see what he had actually filed. Since he has not raised any new issues of law and since the Court denied his petition for certiorari the last time around, I see no reason to file anything further. I doubt the Court will change its mind about the validity of Schmalfeldt’s legal arguments. There’s always the chance that they might, but the odds are small. Even if they grant his petition, all that means is that he has permission to appeal, not that he has won.

Let me make a couple more points.

First, the Gentle Reader should note that the Cabin Boy™ is only appealing the extension of the peace order. Even if he were to win his appeal, the original order would still stand, so he will be an adjudicated harasser regardless.

Second, a peace order is a civil proceeding. Maryland’s expungement statute applies only to criminal proceedings. Thus, peace orders cannot be expunged.

UPDATE—Fixed a typo. 13 April should read 13 May.

* * * * *

Of course, the Court of Appeals threw out that appeal as well.

Everything proceeded as I had foreseen.

Team Kimberlin Post of the Day


Today is the fifth anniversary of the hearing which resulted in the extension of the first peace order issued against Bill Schmalfeldt. I have many pleasant memories of that hearing, but my favorite was of being the witness stand while the judge had interrupted the Cabin Boy’s™ questioning of me in order to explain yet another point of law that Schmalfeldt misunderstood—and looking past him into the gallery to see The Dread Deadbeat Prius-Driver Brett Kimberlin (who had driven the Cabin Boy™ to court) chuckling over Schmalfeldt’s stupidity.

I suspect my memories of the day are more pleasant that Schmalfeldt’s.