Brett Kimberlin’s campaign of pro se lawfare was not the only way Team Kimberlin went after their perceived enemies. Many of us were subjected to various forms of online harassment, and one of the principal agents of that harassment was Bill Schmalfeldt. I was the first person to bring some consequences his way when I sought a peace order against him. After it was granted, he tried to get it modified. Nine years ago today, I reported on what happened at the hearing on his motion to modify. In Summary …
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… what Judge Stansfield told Bill Schmalfeldt in court yesterday was this:
1. The Misuse of Electronic Communication statute has no bearing on the Hoge v. Schmalfeldt peace order because none of the court’s findings were based on it. The court found Schmalfeldt to have violated the Harassment statute.
2. @mentions per se are not at issue in the case. While the direct contact involved in the finding of harassment came via @mentions, the order prohibits all further contact, attempts to contact, or harassment.
3. There is no “journalism” exception to Maryland’s Harassment law.
4. U.S. v. Cassidy deals with publications about someone. Hoge v. Schmalfeldt deals with communication directed to someone.
5. All the questions above were settled at trial and will not be retried unless the Court of Appeals remands the case for retrial.
Now, what new circumstance require that the order be modified?
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Of course, the new circumstances resulting from Schmalfeldt’s misbehavior under the terms of the peace order did not lead to it being modified.
However, they were the bases for extension of the order a few months later.
The Truth is out there, but Team Kimberlin has striven to avoid it. The TKPOTD for nine years ago today dealt with Bill Schmalfeldt’s unfamiliarity with Truth.
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There’s going to be some very interesting news later this week. Meanwhile, I’d like to deal with the following tweet from Cabin Boy Bill Schmalfeldt.The Gentle Reader who takes the time to examine The Fine Print page here at Hogewash! will discover these word:
No statement of opinion may be relied upon as fact. Nothing represented as a fact should be relied upon without further investigation by you sufficient to satisfy your independent judgment that is is true.
Those may seem like weasel words, but they’re not. I take the facts seriously, and I recognize my own fallibility. When considering material found on this blog, the Gentle Reader should trust but verify.
Over the past few days, I’ve written criticisms of the junk published by the Cabin Boy dealing with his outlandish theories of the law and court procedure and his misrepresentation of the facts relating to the Hoge v. Schmalfeldt and Schmalfeldt v. Hoge cases.
IANAL, and I certainly haven’t been giving legal advice, but I have written about my understanding of the applicable law touching on points raised in Schmalfeldt’s tweets and posts. I’m fairly confident that what I have written is correct, and I’ve backed it up with citations to appropriate references. Please note that I have only been addressing his tweets and posts; I will have nothing to say about the contents of his motion to modify the peace order until the court has ruled on it.
As for the facts, they speak for themselves. The Cabin Boy has never denied sending the harassing messages I received. He authenticated them as his own in court. He has tried to say that he wasn’t on notice, but the facts don’t support that. He has tried to claim that his messages were covered by the First Amendment exemption in the harassment law, but the fact of his writing about “troll time,” “poop flakes,” and such convinced the court otherwise. He has repeatedly misrepresented the facts concerning what has happened since the court issued the peace order.
I have featured Mohandas K. Gandhi a couple of times in my Quote of the Day.
An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it. Truth stands, even if there be no public support. It is self sustained.
It is unwise to be too sure of one’s own wisdom. It is healthy to be reminded that the strongest might weaken and the wisest might err.
I endorse Gandhi’s words. The Cabin Boy, OTOH, seems more in tune with Homer Simpson.
Facts are meaningless. You could use facts to prove anything that’s even remotely true!
Almost in tune, but not quite, because Schmalfeldt seems bent on using non-facts to try to prove falsehoods.
One of the problems Team Kimberlin never overcame in any of their pro se lawfare cases was that pro se litigants may be allowed a bit of procedural slack, but in the end, they still have follow the rules of civil procedure and the rules of evidence. Nine years ago today, I put up a post pointing out some of Bill Schmalfeldt’s misunderstandings about the first peace order case filed against him. The post was titled Uh, No, That’s Not What Happens.
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Bill Schmalfeldt seems woefully misinformed about what goes on in either a motion hearing or an appeal.
First of all, let’s consider a hearing on a motion, specifically a motion to modify a standing order of a court, a peace order in this case. Since there has been a final judgment in the case, the legal doctrine of res judicata prevents either side from relitigating the court’s previous findings. Those findings must be taken as a given, so, no, neither side gets to tell the judge that he got the facts wrong. The court may permit either side to introduce new evidence that bears on whether or not the order should be changed because of new circumstances, but the initial findings of fact stand. The court may listen to oral argument about how the law bears on any new circumstances.
Now, let’s look at what happens in an appeal. Since my appeal was from the District Court to the Circuit Court, I was entitled to a trial de novo. That meant that I was able to introduce new evidence, and I did. I showed the court how Schmalfeldt’s harassing behavior had gone on and on in order demonstrate that he was likely to continue. My appeal was to a higher trial court; any further appeal is to an appellate court.
Except in the few cases where they have original jurisdiction and function as trial courts, appellate courts don’t try the facts. They deal strictly with questions of law. If the Court of Appeals takes his case, Schmalfeldt will be stuck with the facts as they are shown in the trial court record. No new evidence is admissible. Schmalfeldt must argue that given the facts of the case—including the fact that he engaged in harassing me—the law was misapplied in issuing a peace order.
I believe Schmalfeldt’s part in the upcoming hearing on his motion to modify the peace order is that of a pro se litigant. While the judge will probably cut him some slack, Schmalfeldt will still be held to the court’s rules. I suspect he will fill that role as a bumbling incompetent who becomes frustrated when the court doesn’t want to play by the Cabin Boy’s rules.
I believe my part in the hearing will be as a party represented by counsel. I expect that the hardest thing for me to do will be to maintain a decent level of decorum rather that laughing at the show.
UPDATE—
… and the Judge wasn’t going to look at the twenty seven eight-by-ten color glossy pictures twenty-four alleged perjuries in the answer with the circles and arrows and a paragraph on the back of each one explaining what each one was to be used as evidence against us.
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Of course, he didn’t pay attention.
And of course, nothing proceeded as the Cabin Boy™ had hallucinated.
The past decade would have gone better for Team Kimberlin if they’d been able to take their Ls and move on, but the usually chose to compound their defeats by appealing initial losses. Nine years ago, I posted #BillSchmalfeldt Thinks He’s Appealing.
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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.
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Not only did Schmafeldt see his petition rejected by the Court of Appeals, he wound up having having that first peace order extended because of his refusal to abide by the order’s terms.
One of the reasons for the chronic failure of Team Kimberlin’s lawfare has been that they have continuously acted as if the laws rules of civil and criminal procedure should be as they want them to be rather than as they are. OTOH, playing by the rules has enabled some successful pushback against The Dread Deadbeat Pro-Se Kimberlin and his minions. This post from nine years ago today shows how playing by the rules in Hoge v. Schmalfeldt resulted in the first of a dozen restraining orders being issued against Schmalfeldt.
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Since there seems to be some bogus information about the Hoge v. Schmalfeldt case circulating on the Interwebs, I thought I’d lay it out simply. Here goes.
There were several elements that had to be proved in order for the peace order to be issued.
First, it had to be shown that Bill Schmalfeldt had engaged in one of the acts that can trigger a peace order. That was harassment in this case. In order to prove that he had engaged in harassment, I had to show that he engaged in a course of conduct designed to harass, alarm, or seriously annoy me and that he did it after being put on notice to stop communicating with me. I also had to show that he did it without any legal purpose. Let’s examine how that was proven.
Course of conduct. That requires more than a single act. In the first hearing in District Court, that was shown by a series of tweets sent over several days, a blog post, and material included in an Internet talk show, all of which Schmalfeldt acknowledged as his work. In the Circuit Court only tweets were introduced, but this time they ranged over a period of several months.
Harass, alarm, or seriously annoy. The contents of some of the tweets demonstrated an intention to harass. Some of them, in the context in which they were sent, could cause a reasonable person to be alarmed, and some of them were plainly annoying. Furthermore, the tweets were addressed to me and were sent after being placed on notice to stop.
Notice to stop communicating with me. A copy of the blog post and the tweet I sent to Bill Schmalfeldt were placed in evidence. In the Circuit Court case, a tweet he sent acknowledging the existence of my notice was also explicitly introduced. Schmalfeldt authenticated his tweet.
Without any legal purpose. Schmalfeldt claimed that his activity as a “journalist” gave him license to continue to contact me after I had told him to stop. Judge Rasinsky plainly told him that he was wrong in his belief. Both Judge Rasinsky and Judge Stansfield found that Schmalfeldt’s communications addressed to me were sent without any legal purpose. Those findings included the statutory exceptions for political speech or publishing information to others.
Second, I had to show that without a peace order it was likely that Bill Schmalfeldt would continue his harassing behavior. To prove this, additional tweets which were not necessarily directed to me but which discussed his harassment of me were placed in evidence. These tweets came in without objection. The arc of Schmalfeldt’s behavior as shown by the tweets apparently convinced Judge Stansfield.
Aside: My lawyer and I agreed that I should present only enough evidence to secure the peace order. Too much stuff might allow for the possibility of Schmalfeldt’s lawyer finding a bogus point to argue. Most of the available evidence stayed in our briefcases. What Judge Stanfield saw was the tip of the iceberg, but it was enough.
I sought the following relief: That Bill Schmalfeldt should not contact me, attempt to contact me, or harass me.
Here’s the relief granted: In addition to the boilerplate stuff about refraining from a list of crimes such as assault, Bill Scmalfeldt was ordered not to contact me, attempt to contact me, or harass me, and to stay away from my residence for 6 months.
Note that he is free to write about me. He can be as obnoxious or vulgar as he wishes so long as he doesn’t write to me. Or call me on the phone. Or send me mail. Etc.
Twitter has not been put out of business. Bill Schmalfeldt’s First Amendment rights are still intact. What’s also intact is my Ninth Amendment right to be left alone. Schmalfeldt must either respect it or be in contempt of a court order.
Sore Loserman Bill has been frothing at the keyboard about how others don’t have to follow the same rules, how he can be insulted without the right to respond. Bullshit! The Cabin Boy can write about me or Aaron Walker or whomever he chooses as long has he avoids defamation and threats. But if he’s been told not to contact someone, he needs to knock it off.
He claims that his offensive tweets are a response to things written about him. That may be, but his responses are written to rather than about someone. If he writes, “John Doe is a jerk”, he’s written about Doe. If he tweets, “@johndoe is a jerk,” he’s writing to Doe, and if Doe has asked him to stop contacting him, he may be in trouble.
He’s also been whining about feeling dissed by being called things like “Cabin Boy.” Tough. If he can’t stand the heat, he should get out of the kitchen.
If past is prolog, then we can expect that the Cabin Boy’s acting out will continue unless he is further restrained by the courts.
UPDATE—One of the anonymous cowards of Team Kimberlin wishes to comment. WordPress trapped this as spam.
Team Kimberlin was not happy with my reporting on their cyberharassment, so they include my among their targets. They were even more unhappy when I began to take steps to hold them accountable for their actions. This post from nine years ago today, #BillSchmalfeldt, Anti-First-Amendment Troll, dealt with the beginning of the Cabin Boy’s™ months long failed effort to overturn the first peace order issued against him.
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Bill Schmalfeldt has been whining about his loss in court last Friday, claiming that it’s the end of Twitter and online journalism. He has misrepresented both the law and the terms of the peace order in the process.
Saturday afternoon, Schmalfeldt spewed forth several tweets which appear to be an attempt to use the same failed tactic that Brett Kimberlin tried last year to silence some of his critics. Aaron Walker has posted this response. The members of Team Kimberlin and its enablers would be well advised to read Mr. Walker’s post and consider his analysis of the situation.
Let me state this one more time: I fully support Bill Schmalfeldt’s First Amendment right to write whatever he wishes about me so long as he stays within the law’s usual limits regarding threats and defamation. However, I do not wish for him to contact me, attempt to contact me, or harass me, and I will seek enforcement of the peace order if I believe that it has been violated.
UPDATE—The Cabin Boy tweets that he was only being sarcastic or satirical, that he was making an attempt at humor rather than making a threat.
Hmmmm.
Like a madman who throws
Firebrands, arrows and death,
So is the man who deceives his neighbor,
And says, “Was I not joking?”
—Proverbs 26:18, 19
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Indeed, most of Schmalfeldt’s humor hasn’t been very funny.
Team Kimberlin never had control of their narrative as soon as a few bloggers began paying attention. They couldn’t find a way to spin coverage in their favor. Eight years ago today, I wrote about how their efforts were Spinning Out of Control.
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As a pilot, I can tell you that a spin is something to be avoided. It can be hard to recover from, and loss of control will result in a crash. Team Kimberlin and its fanboys and enablers seem to be spinning out of control in their reaction to the peace order extension issued last Monday against Bill Schmalfeldt.
The order simply requires Schmalfeldt to refrain from contacting, attempting to contact, or harassing me.
Most of the brouhaha is Team Kimberlin’s misrepresentation of Judge Stansfield’s findings with respect to Twitter and what constitutes contact under the terms of Maryland’s harassment statutes and the peace order he issued.
Notice that I wrote statutes. Plural. Maryland has two laws that are applicable. The first is the general harassment statute which deals with any intentional course of conduct that seriously annoys, alarms, or harasses the victim and that continues after the perpetrator has been told to stop. This is the statute that Schmalfeldt was found to have violated. The fact that his course of conduct involved tweets was incidental to that finding. It was his conduct and not the particular means of delivery that was the issue. In the context of Schmalfeldt’s behavior, the judge found that Schmalfeldt’s tweeting @mentions and @replies using @wjjhoge was a part of his method of harassing me. Harassing me. Not contacting me. But he was ordered to stop doing both.
Maryland also has a law aimed specifically at harassment via electronic communications. It allows for an enhanced criminal penalty when harassment is conducted by means of data (text, photos, whatever) sent to and received by a specific person. During the October hearing on Schmalfeldt’s motion to modify the order and during last Monday’s hearing on the extension, the judge found that using an @mention or @reply caused Twitter to deliver the tweet containing it to a particular account, the account of the user mentioned. That means that someone who was uses @mentions or @replies to engage in a course of harassing conduct could be charged under both laws, electronic harassment for a possible enhanced criminal penalty and harassment in general to enable a peace order to be issued. Specifically, Judge Stansfield found that Schmalfeldt’s 470 tweets containing @wjjhoge or @hogewash were contact that I should not have received under the terms of the peace order.
(I note that the three pornographic images entered into evidence were found to be harassment but not contact, and also good cause to extend the peace order. Although they were tweeted, the versions entered into evidence were from websites. Schmalfeldt’s harassment of me has not been limited just to Twitter.)
This doesn’t cause any real change in how the First Amendment relates to harassment. Harassment isn’t protected speech. What it does is to make it clear that Twitter is not a safe harbor for harassers under Maryland law. Twitter users will be held to the same standard in that forum that would they be writing in a newspaper or speaking on a street corner.
Is that so bad?
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There are still some open issues with Team Kimberlin which haven’t been dealt with. Yet.
One of the best techniques to use against Team Kimberlin in court has been to let them make my case for me. Doing so resulted in what Bill Schmalfeldt called My “Dirty” Win in the hearing to extend the peace order against him. I wrote about it eight years ago today.
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I’m told that Bill Schmalfeldt has been whining about my “dirty victory” in court yesterday.
It’s true that my lawyer had a secret strategy that she used against him, and it worked: She let him talk.
Schmalfeldt repeated arguments that previously had been shot down. He asked irrelevant questions. He ranted. He yelled. He pounded the table. He convinced the judge that he intended to continue to disobey the peace order. In short, he made my case for me.
Bill Schmalfeldt can think that was a dirty trick if he wishes. I call it good lawyering.
Now, if Schmalfeldt will simply obey the peace order, I will have no reason to take any particular notice of him. We’ll see how that goes.
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My podcasting partner Stacy McCain once wrote that the easiest way to discredit Bill Schmalfeldt is to quote Bill Schmalfeldt. Sometimes, it’s even easier to simply let him keep talking.
I was the first person to be able to hold Bill Schmalfeldt accountable for his cyberharassment undertaken on behalf of Team Kimberlin by securing a peace order against him. Of course, he continued his thuggery, so eight years ago today, there was a hearing that resulted n the peace order being extended for six months. I wrote about the hearing in a post titled What I Saw in Court Today.
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I was called to the stand by my lawyer Zoa Barnes, and we presented evidence of Bill Schmalfedlt’s violations of the existing peace order. The peace order requires that Schmalfeldt not contact, attempt to contact, or harass me. We presented evidence of over 470 times that he contacted me after the order was issued. We presented evidence of at least one attempt to contact me through third parties. We presented evidence of harassment in the form of three pornographic images Schmalfeldt created using my likeness. Even dealing with lots of objections, that only took about 20 minutes.
I spent the next hour on the stand being cross examined by Schmalfeldt. Most of that hour was taken up by his ranting rather than actually asking me questions. He tried to get the court to consider many of the legal theories he had offered before. The result is best summed up with the word res judicata. At one point Schmalfeldt asked me what I thought would happen if the the peace order were extended. I replied that I expected that he would continue to violate it until it was enforced.
When Schmalfeldt tried to bring up the Attorney General’s opinion letter, Judge Stansfield quoted a Court of Appeals decision back to him that said that the Attorney General’s opinion is just one lawyer’s opinion.
After my grilling on the stand, we rested my case, and the court took a brief recess. When we were called back, Schmalfeldt tried to make his case. He was sworn and offered some testimony.
During her closing argument, Zoa Barnes made the point that if the order were extended and Schmalfeldt were to violate it, we would be back with a motion for contempt seeking jail time.
Judge Stansfield granted the six-month extension of the peace order. In doing so, he found that the 470 tweets that I had received between noon on 16 October and last night were contact that I should not have received under the existing peace order. He also found that the pornographic images were harassment sufficient to permit the order to be extended.
That’s what happened today.
Oh, one more thing …
Brett Kimberlin drove Bill Schmalfeldt to the courthouse today. What appeared to be the same silver Toyota Highlander photographed at BlogBash was parked at the courthouse.
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BTW, one of the pictures of me he used to create those pornographic images was taken when I was 17.
After I filed one of several complaints about unwanted contacts from Bill Schmalfeldt while he was subject to a Peace Order, a District Court Commissioner charged Schmalfeldt with misuse of electronic communication or interactive computer service. The State’s Attorney eventually declined to prosecute the case, but while it was pending Schmalfeldt kept insisting that (a) mentioning someone on Twitter was not a form of contact. Eight years ago today, I put up this post discussing The Elements of one of the acts prohibited by Maryland Criminal Law § 3-805,
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In order to establish that a law has been violated, one must show that all of the elements of the crime have been committed. What are the elements of the Maryland crime of misuse of electronic communication or interactive computer service?
One of the acts prohibited by Maryland Criminal Law § 3-805 is (1) the use of any means of data transmission (2) via a computer or other electronic means (3) to send that data to a person (4) who receives that data (5) for the purpose of engaging in course of conduct (6) that alarms or seriously annoys another (7) with the intention to harass, alarm, or annoy the other person (8) after being told to stop and (9) without a legal purpose.
1. Does Twitter transmit data? Yes.
2. Does the transmission go via a computer or other electronic means? Yes.
3. Is the data sent to a particular person? If @useraccount is used, Yes.
4. Does the user receive the data? Yes. It arrives in his Interactions and/or Mentions pages.
5. Does a course of conduct exist? If no more than an isolated tweet is involved, probably no. If a sustained flow of tweets is involved, yes.
6. Does the data contain anything alarming or seriously annoying? If it’s petty name calling, probably no. If it’s threats to file criminal charges, probably yes.
7. Does the course of conduct demonstrate an intention to harass, alarm, or annoy? If it contains threats to file criminal charges, probably yes.
8. Was the data sent after being told to stop? A warning from the bench by a District Court judge is notice to stop. A peace order is notice to stop.
9. Was the data sent without a legal purpose? Communication or harassment in violation of a peace order is illegal.
The examination of the elements of this crime with respect to the behavior of certain persons using Twitter is left to the Gentle Reader as an exercise.
Speaking of “The Elements” …
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It has been suggested that the elemental particle of Team Kimberlin is the moron.
I was the first of several people to hold Bill Schmalfeldt accountable for his cyberthuggery and harassment undertaken on behalf of Team Kimberlin. The Cabin Boy™ and his enablers tried multiple times to spin Schmalfeldt as a victim rather than perpetrator. This I’m Not Making This Up, You Know post from eight years ago dealt with one of their lamest attempts. The email was sent a week before the hearing that resulted in the original peace order granted against Schmalfeldt being extended.
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I have just received the following email—
Matt Osborne
To: hogewash@wjjhoge.com
Legal Notice
Dear Mr. Hoge:
As Section 3-803 of the Maryland Criminal Law Code allows for a person to make such a request on behalf of another, I am officially and legally asking you to cease and desist all harassment of William M. “Bill” Schmalfeldt of Elkridge, Maryland. This includes referring to Mr. Schmalfeldt by such derogatory and defamatory “nicknames” as “Cabin Boy” or “Oedipal Bill” or anything other than his actual name. This includes the filing of any additional frivolous charges against him. Mr. Schmalfeldt can not preclude you from writing about him, but he considers derogatory nicknames, especially when they are spread by your followers all over the Internet, to be a textbook definition of harassment. Also, as all your previous criminal charges against Mr. Schmalfeldt have been dismissed by the Carroll County, Maryland, State’s Attorney, but you continue to file charges with the expectation that the outcome will somehow be different, Mr. Schmalfeldt considers the continued filing of these charges as harassment and demands that you cease at once.
Failure to abide by this request will be seen as a violation of the above named section, and you can expect Mr. Schmalfeldt to take appropriate steps.
Sincerely,
Matt Osborne
I will have no comment on this until after I have consulted with counsel.
UPDATE—After consulting with counsel, I choose to hold my response until 9 December.
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Of course, even if Osborne’s claims were true, none of the acts complained of in that email were possible triggers for a Maryland peace order.
BTW, 57F Matt Osborne’s (a)osborneink Twitter account is still suspended.
Even after being told that there was no “journalism” exception to the Maryland peace order statute, Bill Schmalfeldt continued to contact me. He then tried to claim his use of Twitter wasn’t a form of contact. This Prevarication Du Jour from eight years ago today dealt with one of his attempts to spin The Narrative in his own favor.
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Bill Schmalfeldt thinks he’s found perjury in the Applications for Statement of Charges that I have filed.
He must not have looked very hard. The second tweet listed in the first Application appears to be his part of this exchange taken from the @LobotomyRadio timeline.That’s pretty good evidence that the Cabin Boy sent his tweet by clicking the Reply button at the bottom of @LNSmithee’s. Here is Twitter’s definition of a @reply:Thus, we see that my allegation that Bill Schmalfeldt was using both @mentions and @replies is supported by evidence.
UPDATE—Yes, indeed, Gentle Reader, the Cabin Boy wants us to believe that he didn’t use the reply button on this tweet to generate his tweet addressed to the accounts in the Reply to line shown here. Do you believe that it’s just a coincidence that the addresses on the Cabin Boy’s tweet are exactly the same accounts in exactly the same order with exactly the same capitalization as would have resulted from hitting the Reply button on the tweet he was commenting upon?
Neither do I.
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Schmalfeldt managed to pick up a dozen restraining orders in five states before he decided to give it a rest.
The Maryland Court of Appeals has denied Bill Schmalfeldt’s petition for a writ of certiorari. This leaves the peace order issued against him in place.
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And so with the able assistance of my lawyer Zoa Barnes I was able to be the first of several people to hold the Cabin Boy™ responsible for his cyberthuggery.
Over the years, I’ve lost count of the times Team Kimberlin has forecast the direst of dire direness would befall me in court. Eight years ago today, Bill Schmalfeldt’s motion to modify the peace order issued against him was denied, and I published this post about his False Prophecies.
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Bill Schmalfeldt is a false prophet, or perhaps I should say he has a rather poor record of predicting my future.As Judge Stansfield told him, the things already decided by the Court weren’t up for review in a motions hearing. Res judicata and all that. And the 24 alleged perjuries in my lawyers answers to his motion were never discussed. My disagreement with his point of view did not constitute perjury, and, even if it did, it wasn’t relevant to his motion.Schmalfeldt seems to be confused about the relationship between civil torts and crimes. There was essentially no chance of my being arrested today.I pointed out in an earlier post that I already have a nice pair of Smith & Wesson Stainless handcuffs left over from previous employment. I really do. I found this old picture of them.UPDATE—To answer inquiries, it’s a Colt Detective Special (Third Model).
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BTW, that peace orders was the first of dozen restraining order the Cabin Boy™ collected in five states.
The main reason Team Kimberlin has lost every single LOLsuit they filed since 2012 is that both the facts and the law have been against them, but a close runner up was their mind-boggling incompetence as pro se litigants. This post from eight years ago today poked fun at #BillSchmalfeldt, Legal Genius.
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From tweets in my Twitter timeline and emails, I’m given to understand that Bill Schmalfeldt has received service on the Motion to Dismiss Petitioner’s Motion for Stay Pending Appeal filed by my lawyer. I’m told that he doesn’t like it. Now, that’s a shock—Schmalfeldt doesn’t like my lawyer’s defense of my position.
The mailman just delivered a copy for me a few minutes ago. It seems that Md Rule 8-425 states that the party filing for injunctive relief shall do so in the Circuit Court first before going to an appellate court. Since that isn’t the course the Sore Loserman has taken, Ms. Barnes has asked that his motion be dismissed.
Schmalfeldt filed his appeal with the wrong court. Now, it appears he’s filed a motion in the wrong court.
The original reason I started writing about Brett Kimberlin and his minions and enablers was reporting on an unconstitutional gag order that had been issued as part of a peace order he had obtained against Aaron Walker. The gag order was overturned on appeal, and the peace order was denied during a de novo trial in a higher court. Indeed, all of the peace order petitions filed by Kimberlin and his PR flack Bill Schmalfeldt against people reporting on their activities were denied.
OTOH, one peace order sought against Brett Kimberlin was granted, and two peace orders I sought against Bill Schmalfeldt were granted as well.
Schmalfeldt appealed the first peace order and its extension. This post, In Re Schmalfeldt v. Hoge 2, was posted seven years ago today.
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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.
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.
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It turned out there wasn’t any reason to file a response. The Court of Appeals denied the petition for certiorari.
While I was the first, I wasn’t the last person to have some sort of protective order issued against Schmalfeldt. He wound up with at least a dozen such orders issued in at least five states. One was issued to protect a toddler.
One of the byproducts of the abundance of lies told by Team Kimberlin has been a recurring feature here at Hogewash! called Prevarication Du Jour. Some days, the lies are so plentiful that I post a Bonus Prevarication Du Jour. He’s one from seven years ago today.
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Baghdad Blob has told a couple of whoppers this morning in reaction to today’s Prevarication Du Jour. Let’s examine them in turn.I have secured a peace order against Bill Schmalfeldt. Reporting suspected violations of that order to the appropriate authorities is a lawful act. Similarly, suing someone who has already been adjudicated as a harasser for harassment would not only be legal, it would about as close to a slam dunk as one can find in a courtroom. The Cabin Boy claimed in his original tweet that he never threatened me, but in the tweet above he admits he did.
Threatening to accuse someone of a crime in an attempt to persuade him to not do something he legally may do is extortion.
In his original tweet, the Cabin Boy also claimed that he never harassed me. During the last court hearing, I submitted three obscene pictures that Schmalfeldt published as evidence of harassment.
I’ll discuss just one of the images that I submitted as evidence of harassment. I won’t reproduce any part of it because the judge sealed that evidence. It is a picture of two men engaging in homosexual sex. My face had been put on the person on the receiving end of anal sex. I have not complained about having my face photoshopped into every picture that Schmalfeldt ever published—some were actually clever—but I have complained about being grafted into porn. The judge looked at the pictures entered into evidence, the events surrounding their publication, the web pages containing them, and the Cabin Boy’s comments about them, and he found that their publication was harassment.
The picture on the left was inspired by Aaron Walker referring to Bill Schmalfeldt as “Baghdad Blob.” Schmalfeldt’s face has been grafted on to a widened version of the body of Muhammad Saeed al-Sahhaf (aka Baghdad Bob). That’s the image Schmalfeldt complains about. Schmalfeldt wants to equate a parody image that ties his track record of making false predictions of legal victories with a notorious propagandist to hard-core porn. The Gentle Reader may draw his own conclusion as to who is the hypocrite.
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Gentle Reader, could it be that having dozen restraining orders in five states is having some impact on the Cabin Boy’s™ prospects? Perhaps actions really do have consequences.
Of all the lame insults through my way by the members of Team Kimberlin, the one that struck me as the most childish was Bill Schmalfeldt’s Twitter impersonation account reference in this post from seven year ago titled #BillSchmalfeldt Takes a Break.
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Or goes into hiding. Or something. He’s taken his tweets private. That leaves the serial harassment counter set at …BTW, the 198 since noon last Friday is not a record. Stacy McCain got over 200 in a couple of days last Thanksgiving.
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BTW, the Cabin Boy™ resumed tweeting at me, so when we went for a renewal of the peace order issued against him, we were able to show the judge almost 500 tweets that violated the terms of the court’s order. The judge extended the peace order for an additional six months. Schmalfeldt eventual wound up subject to a dozen restraining orders issued in five states. One was issued to protect a toddler.
In 2013, I sought a peace order against Brett Kimberlin. My petition was denied by the District Court, as was my appeal in the Circuit Court. I ran this post, Breitbart Unmasked Unmasked, seven years ago today in the afternoon after the appeal hearing. It outlines my case against Kimberlin. At the bottom today’s reposting I’ll explain the pieces of evidence that I didn’t have during the hearing that I believe would have convinced the judge to grant the peace order.
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OK, Gentle Reader, here’s the first installment in my side of the story. I know you tuned in looking for information on the Hoge v. Kimberlin peace order case, but in order for things to make sense, I need to begin with something about the editor of the Breitbart Unmasked website—
As those of you who have been following the Saga of The Dread Pirate Kimberlin and Team Kimberlin will remember, Bill Schmalfeldt has 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.
He continued to send tweets to my @wjjhoge account. As a result, I filed a harassment charge against Schmalfeldt on 18 February. I also filed charges against Brett Kimberlin, Neal Rauhauser, and Bill Schmalfeldt related to another matter at the same time. This is not the place to deal with those issues.
Even though he was on notice and had had a criminal harassment charge filed, Schmalfeldt kept sending me tweets and addressed a blog post to me—not a post about me, one addressed to me. He also broadcast a threat against me on his Internet talk show as well as three other individuals. Because of that activity, I filed for a peace order against Schmalfeldt.
This the last tweet, 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: I have never been paid to write anything on this or any other blog. 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’m able to do this because I have an above average income working in a very senior engineering position. I’m getting old and may retire some day. When I do, I may put out a tip jar. But for now, my income is adequate to support this blog as a hobby.
At this point, Gentle Reader, you may be wondering what this has to do with Brett Kimberlin. Be patient. I need to lay the foundation for the story.
Schmalfeldt seemed quite agitated by the peace order. A few hours after being served, he rebroadcast the same threat he made earlier that week. @BreitbartUnmask tweeted for him to chill and “let legal handle it.”
BreitbartUnmask @LiberalGrouch @OccupyRebellion @Stranahan @AaronWorthing then don’t email him or anyone else. Let legal handle that from now on.
1:50 AM Feb 24th from Tweetbot for iOS
BreitbartUnmask @LiberalGrouch @OccupyRebellion @ Stranahan @AaronWorthing That would be a better course of action Bill. Let legal handle that.
1:51 AM Feb 24th from Tweetbot for iOS
BreitbartUnmask @LiberalGrouch @OccupyRebellion @Stranahan @AaronWorthing Understood Bill. Legal will deal with them 😉
1:53 AM Feb 24th from Tweetbot for iOS
The final hearing for that peace order was held on 28 February. The judge didn’t pick up on the fact that Schmalfeldt had had proper notice, so, relying on Schmalfeldt’s false statement that he had not, the judge let him off. But with a warning. He placed Schmalfeldt on notice to leave me alone, telling him that his activity would be harassment given notice and that he now had it.
Brett Kimberlin showed up at the courthouse to attend the hearing. He was excluded from the courtroom as a potential witness. Since he wasn’t called, he did not see any of the hearing, but he was present in the hall outside when the hearing ended. As some supporters and I were exiting the courtroom, we saw and heard Schmalfeldt’s lawyer loudly lecturing his client and Kimberlin. The gist of his warning was that they had been lucky that day, but if they kept it up, they’d go to jail. Note: I have appealed this case and won’t have any more to say about it until the appeal is heard.
Schmalfeldt kept it up, and, as we’ll see below, Kimberlin joined in.
But first a bit more Schmalfeldt.
One of those supporters exiting the courtroom with me was Aaron Walker. Aaron had come up to view the hearing so that he could blog about it. (OK, I need to do another aside: At that point in these peace order cases I was proceeding without a lawyer. I am now represented by Zoa Barnes. Aaron Walker does not now and never has represented me in any legal matter in Maryland.) Because it’s a two hour drive from Manassas, Virginia, to Westminster, Maryland, Aaron and his wife stayed at my house the night before and the night following the hearing. The next day, 1 March, Aaron stopped by the Howard County District Courthouse to file an harassment charge and a peace order against Schmalfeldt. Shortly after the peace order appeared online in the Maryland Judiciary Case Search database, Brett Kimberlin appeared at the courthouse trying to intervene. When he was unsuccessful at that, he took to stalking Mrs. Walker in the courthouse parking lot. Details here. Mrs. Walker was very shaken by the experience. I went to the courthouse and escorted the Walkers back to my house to rest.
While he was stalking Mrs. Walker, Kimberlin was photographed using a iPhone to take pictures of the Walkers. Some of his photos were subsequently published on the Breitbart Unmasked website. (No, I won’t link to it.)
Normally, the final peace order hearing comes a week after the temporary order is issued. In the Walker v. Schmalfeldt case, that hearing was put off for two additional weeks because of the death of Schmalfeldt’s mother. There were some interesting Kimberlin shenanigans related to the continuance, but they’re outside the scope of this post.
Beginning on 3 March, @BreitbartUnmask sent the following:
BreitbartUnmask @LiberalGrouch @DallasDumbass At anyrate , I think I will say @aaronworthing and @stranahan and @wjjhoge about as much as I want.
7:30 PM Mar 3rd from web
BreitbartUnmask Mr. W.J.J. Hoge Has Either Been Hoaxed, Or Is Very Stupid: http://t.co/bHA1eVIjfw #p2 #tlot
8:51 PM Mar 3rd from WP Twítter
BreitbartUnmask Mr. W.J.J. Hoge Has Either Been Hoaxed, Or Is Very Stupid: http://t.co/bHA1eVIjfw #p2 #tlot
6:50 PM Mar 4th from WP Twítter
BreitbartUnmask @OsborneInk @SwitRead @NealRauhauser @OccupyRebellion none. All charges brought by bi-polar Mike Stack and Wjj Hoge who is insane.
4:41 PM Mar 10th from Tweetbot for iOS
BlogBash is a blogger party/awards ceremony that is loosely associated with other events, one of which is the Conservative Political Action Conference. This year’s BlogBash at CPAC was held at a night club a couple of blocks from the convention center. On 7 March, one week before BlogBash, the venue received a call from someone who said he was Brett Kimberlin and who told the club that if they did not “cancel this event, I’m reaching out to the over 1000 organizations I am in contact with to put you guys out of business.” The club’s representative asked, “Are you threatening us, sir?” The caller replied, “No, I’m not threatening you I’m just pissed off. The guy who owns BlogBash has threatened me and my family and I am appalled that you would host his event.” The rant continued with a warning to expect a demonstration led by a fiery imam. Those threats, combined with the threat broadcast by Schmalfeldt, were taken seriously enough by the PG County Police that they beefed up security along the block where the event was held. You can see plenty of police cars in the pictures published about the event at Breitbart Unmasked. More about those pictures in a bit.
On 14 March, the date of BlogBash, @BreitbartUmask retweeted this from @OsborneInk:
OsborneInk .@ali @AaronWalker @wjjhoge Look out, it’s the Ides of March ! Obviously that means someone will explode Blog Bash w/their mind
1:25 PM Mar 14th from SocialOomph retweeted by BreitbartUnmask
Beginning at 6:21 pm that evening, he tweeted the following:
BreitbartUnmask @wjjhoge @Kimberlinunmask Zieg Heil Hoggy, Get your Nazi uniform on for zeee cameras you dumb piece of shit. Wait, you live in shit.
10:21 PM Mar 14th from web
BreitbartUnmask @Xcitizen10 @AkbartheFraud @ LiberalGrouch @yidwithlid Then it will be FILM AT 11..
10:22 PM Mar 14th from web
At around 9 pm, the threatened “demonstration” happened—a single guy with a camera who began accosting people coming and going from BlogBash. The photographer, who is believed to be Craig R. Gillette of Washington, DC, did not seem to be fully aware of everything that has been going on with Team Kimberlin’s harassment of bloggers. This is somewhat surprising given that Mr. Gillette has been associated with Justice Through Music Project for over seven years.
Gillette was not the only person there in support of the “demonstration.” @BreitbartUnmask was there as shown by this tweet which was sent around 10:28 pm that evening:
BreitbartUnmask @catsrimportant @LiberalGrouch Seriously, the music sucks. Sorry for those who prefer piano bars, but my ears are hurting at off key music.
2:48 AM Mar 15th from web
Gillette was not the only one taking pictures either, and several pictures from across the street were published on the Breitbart Unmasked website. I won’t go into any detail here, but forensic evidence links pictures taken at the Howard County District Courthouse and at BlogBash. I believe that evidence shows that Brett Kimberlin is @BreitbartUnmask.
Meanwhile, back with Schmalfeldt, because of his continued tweeting to me in spite of being put on warning by a judge, I filed for a second peace order, and when he kept at it after that, a petition for contempt.
On 22 March, the Walker v. Schmalfeldt peace order case came up in Howard County. The final order was denied when the judge bought the theory advanced by Schmalfeldt’s lawyer that since Schmalfeldt was a journalist and Aaron Walker was a public figure, Walker had to put up with the harassment. Hold on to that idea that Schmalfeldt is a journalist, at least in the eyes of his lawyer.
On 25 March, my second peace order case with Schmalfeldt came up. This time the defense offered by Schmalfeldt’s lawyer was that neither Schmalfeldt nor I are journalists; we’re just a couple cranky old men having a shouting match on the Internet, and, in any case, the peace order statute doesn’t cover electronic harassment any way. The judge bought the electronic-harassment-isn’t-covered argument and denied the peace order.
Note: On Friday, Schmalfeldt’s a journalist worthy of protection. On Monday, he isn’t.
Moving back to Kimberlin, between 1:32 pm on the afternoon of 21 March and 9:42 pm that night, he sent these tweets:
BreitbartUnmask @Xcitizen10 @Stranahan @wjjhoge @AaronWorthing Hoge has things. Walker=garnishment Stranahan =default judgment he will skip out on.
1:40 AM Mar 22nd from Tweetbot for iOS
BreitbartUnmask @Xcitizen10 @Stranahan @wjjhoge @AaronWorthing All pretty close 😉
1:40 AM Mar 22nd from Tweetbot for iOS
BreitbartUnmask @Xcitizen10 @wjjhoge Could it be that Hoge is on mental disability? Either way he will soon be feeling a hot poker up his wallet.
1:42 AM Mar 22nd from Tweetbot for iOS
The next day, I filed for a peace order and a second criminal harassment charge against Kimberlin. The criminal charging document only listed the harassing tweets. However, he was charged under the general harassment statute. At the beginning of the hearing on 29 March, Kimberlin’s lawyer, the same lawyer who defended Schmalfeldt, offered a motion to dismiss citing the previous Monday’s ruling in the Schmalfeldt case. The judge agreed and dismissed the case without a hearing on the merits.
I believe that the judge erred as a matter of law, so I appealed the case to the Circuit Court. The case was set for today.
On 23 April, I received a copy of a motion filed by Brett Kimberlin seeking to have his case consolidated with Bill Schmalfeldt’s. He filed that motion without bothering to tell his own lawyer. Now, it’s OK to write your own motions, but if you are represented by a lawyer, all communication with the court and the opposing party is supposed to go through your counsel. I immediately contacted Kimberlin’s lawyer and asked what was going on, but I received no reply.
I responded to Kimberlin’s motion on 25 April. The net of my response was that I see the two trials as dealing with separate acts by different individuals at different times and that I believe they should be tried separately. However, I had no objection to trying the case on the same day, so long as that date is no sooner that the 14 June date of the Schmalfeldt trial. At the same time, I also submitted a Motion to Reinstate Peace Order Pending Appeal citing the error I believe that the District Court had made and seeking to have the temporary peace order reinstated if the Kimberlin trial is delayed a month or more.
The normal flow of motions in the Circuit Court would bring Kimberlin’s motion, my response, my motion, and any response he filed before a judge on last Monday, 13 May. The judge found technical deficiencies in both of our filings and left the case scheduled for today.
Since filing those papers on my own, I have hired Zoa Barnes to represent me in both of the Kimberlin and Schmalfeldt peace order appeals. A couple of days ago, I received service on a Motion to Strike from Tae Kim, the lawyer who had handled the cases for Schmalfeldt and Kimberlin in the District Court, saying that he had been let go as Kimberlin’s lawyer and asking to be removed from the case. Kimberlin had decided to proceed pro se. Kimberlin filed a Motion to Dismiss based on the same theory that Kim had used to get him off in District Court.
A subpoena duces tecum was served on Bill Schmalfeldt ordering him to attend the hearing as a witness and to produce certain documents related to the case against Kimberlin. Kimberlin was served with a subpoena duces tecum for related documents as well. The hearing was scheduled for the Historic Courthouse in Westminster, Maryland, which is an old (1838) building with lots of stairs and no elevators. At my lawyer request, the case was moved from the main courtroom upstairs to a small courtroom on the main floor in order to accommodate Schmalfeldt’s disability. He didn’t bother to show up.
The hearing was before Judge Stansfield. He announced that he was deferring a ruling on the Motion to Dismiss until after he heard the evidence. I was the only witness. On direct examination, I testified to my qualifications to do forensic analysis, on the tweets that I had received from BreitbartUnmask and their annoying and alarming nature, and on results of the forensic analysis of data contained in the tweets and a certain blog post that tied the BreitbartUnmask identity to Brett Kimberlin.
On cross examination, Kimberlin asked a series of mostly non-germane questions. (For example, he wanted me to identify the person who blogs as Kimberlin Unmasked. For the record, I don’t know who that is.) He asked why I believed he was BreitbartUnmask and I explained a bit of the process.
And the Petitioner rested.
Before Kimberlin could offer any testimony, my lawyer pointed out that he was a convicted perjurer. She reminded the judge of MD Courts & Judicial Proc. §9-104:
A person convicted of perjury may not testify.
The look on Brett Kimberlin’s face when he realized that the judge wasn’t going let him testify and that there were no other witnesses he could question to get evidence into the record … priceless!
Kimberlin ranted for a while about how this was a clear violation of his First Amendment rights, yada, yada, yada, … (Ah, no. The Fifth Amendment is the one about due process.) Then the judge asked if he had any other witnesses. Since there were none, the case proceeded to closing arguments.
My lawyer did an effective summation of the facts and the law. We asked for a show-cause order against Schmalfeldt for his noncompliance with our subpoena. Kimberlin delivered another rant about his First Amendment rights and how he’s not the harasser. He’s the one being dragged into court by people like Aaron Walker and Walker’s surrogates like me.
The judge took the case under advisement. He will deliver a written ruling. I look forward to it.
So that, Gentle Reader, is a bit of my side of this story, but only a bit. It’s as much as I can tell you for now.
Stay tuned.
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During July and August of 2013, I was able to conduct interviews with Brett Kimberlin’s wife Tetyana. She stated that she had been one of the five people present with Kimberlin during BlogBash. The other four were Brett Kimberlin, Craig Gillette, and Mrs. Kimberlin’s two daughters. She said that she took several pictures using Brett Kimberlin’s iPhone that were published on Breitbart Unmasked. Forensic data tends to support that those pictures were taken with the same iPhone Kimberlin used to photograph Mrs. Walker during the stalking incident at the Howard County Courthouse a few days before BlogBash. Thus, there is an eyewitness to Kimberlin’s presence at BlogBash and evidence tying his phone to pictures published at Breitbart Unmasked.
Finally, the time stamps on the BU tweets sent during BlogBash show that some of them were made while Craig Gillette had his hands full (literally) taking pictures on the sidewalk outside the BlogBash venue. There’s no way Gillette could have sent the tweets, Mrs. Kimberlin says she was tending her children, so that leaves Brett Kimberlin as the person who could have sent some of the @BreitbartUnmask tweets from BlogBash. It seems Kimberlin lied when he said he never used that account.
The Maryland law preventing testimony from convicted perjurers has been repealed. However, a previous conviction for perjury can be brought to the court’s attention as a part of impeaching a witness’ credibility. So can subsequent false statements. Brett Kimberlin should expect to have a rough time if he’s ever on the witness stand again.
UPDATE—This blog was a hobby until I retired (for the first time) in July, 2013. At the time the post above was written, I hadn’t been paid for any of my blogging. Now, this is a for-profit operation. Please feel free to hit the Tip Jar or buy something at The Hogewash Store.
One of the running gags in the pointage, laughery, and mockification of Team Kimberlin’s lawfare has been the assumption that they have been buying their legal advice from the same Acme that sells all those wonderful gadgets to a certain coyote. Whether that true or not, it’s a plausible explanation for their mind-boggling misunderstand of legal principles. This post called Hoge Logic Explained first ran six years ago today and takes a poke at Bill Schmalfeldt’s inability to comprehend why send a message via Twitter is a violation of a no-contact order.
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Yep. That’s it. And it’s the same logic that makes AT&T ring my iPhone if you dial my number. It’s the same logic that makes the U. S. Postal Service deliver mail to my mailbox if you put my address on the envelope. It’s the same logic that makes the Internet route email to my account if you use my email address. It’s the same logic that makes …
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There’s a reason why the Twitter account the Cabin Boy™ was using was referred to as Derp Brain Radio.
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.
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Does 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.
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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.
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.
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pre·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:
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— The 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.
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.He 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?
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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.
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.
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As 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.
The 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.I 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.
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.
UPDATE 2—Here’s a picture of Chief Judge (retired) of the Maryland Court of Appeal Robert M. Bell.
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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.
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.
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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.
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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.
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.
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It seems that the Cabin Boy™ is still getting his legal advice from Acme.Where 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.
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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.
