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.

It Doesn’t Work the Way He Thinks

The Cabin Boy™ is big on making demands.WMS Radio Network201406101638ZWell, yes, I will have to prove the allegations that I’ve made to the court. To. The. Court. I don’t have to prove anything to The Dreadful Pro-Se Schmalfeldt™. He can yammer all he pleases online, but he won’t get any response from me. All my substantive communication with him will be through the court and related legal processes.

Meanwhile, all is proceeding as I have foreseen.


@PatO201404222334ZThat is for me to know and the Cabin Boy™ to find out. It is unlikely that he would enjoy the experience. Consider the following:

Of all the people that Bill Schmalfeldt has harassed, I’m the only one who has been able to do anything to hold him accountable for his actions. In the process of my doing that over the past year, the Cabin Boy™ has been exposed to the world for what he is—an ineffective, incompetent, talentless, vile, and cowardly loudmouth who is full of bluster but lacking in substance.

Stacy McCain has observed that “the best way to discredit Bill Schmalfeldt is to quote Bill Schmalfeldt.” Indeed, allowing Schmalfeldt to act out, allowing him to show his true self over the past year, has allowed him to destroy his own credibility. The most benign view that anyone, including law enforcement, has of him is as a harmless loonie who is a bit of a pain-in-the-ass. That is true not only in Maryland, but in other states as well, and not everyone’s opinion is so benign.

Moreover, the past year has shown the Cabin Boy™ to be a loser. The peace order stuck. His motion for modification was denied. His appeal of the peace order was denied. The six-month extension was granted. There was no probable cause found when he tried to file a perjury charge against me in Carroll County. He’s had even poorer luck on his home turf in Howard County. The only reason he isn’t in the Carroll County Detention Center (or Springfield State Hospital) right now is because I agreed to drop charges. And the whole copyright infringement thing over the past few days … oh, never mind.

You get the picture, don’t you, Gentle Reader? Each new thing the Cabin Boy™ tries winds up showing him to be a bigger fool, a sorrier sore loser. So, beyond saying that I will keep allowing the Cabin Boy™ to make of fool of himself if he insists and to hand me another win, I see no need to give him any help.

I doubt that Bill Schmalfeldt has enough sense to leave me alone. I expect he will do something stupid.

Stay tuned.

Prevarication Du Jour

db201401101647ZOne of the items that the Cabin Boy will be required to file for his appeal to the Court of Special Appeals of the extension of the peace order will be a certified copy of the transcript of the hearing. When he gets the copies he’s required to distribute, one for the court and one for me, he can read for himself what Judge Stansfield said.

75bucksBTW, bound certified transcripts aren’t cheap. The transcription fee is about three bucks per page, and there are reproduction fees on top of that. The 15 bound copies of the appellant’s brief and 10 copies of the record extract won’t be cheap either. Given that Schmalfeldt says that he expects to lose and given that he’s been dead in the water with his fundraising, one wonders why he is determined to spend several thousand dollars on a lost cause.

Prevarication Du Jour

db201401100037ZHow does the Cabin Boy know whether or not there are witnesses to my reading his tweets while in my own home? Does he think he can prove that I only read them when I was closeted away in my office with the door locked? Can he prove that I never sat at the kitchen table with my laptop showing friends his tweets? Can he prove that I never sat in the living room with my family while reading his tweets aloud from my iPad?

But all of that is probably moot. The elements of the crime of failure to obey a peace order are 1) that an order was in place and 2) that the person committed an act prohibited by the order.

Schmalfeldt has conceded the existence of the order by appealing it. That establishes the first element.

Schmalfeldt admitted during the hearing on the extension that he sent the tweets. Such an admission against interest can be used as evidence in a criminal trial, so his admission establishes that the Cabin Boy committed the acts in question. Judge Stansfield found that all 470 tweets placed in evidence violated the order. Since all of the 351 tweets covered by the four pending cases were among the 470, that establishes that the acts were prohibited by the order. That establishes the second element, and I suspect that a District Court judge would defer to the finding of a Circuit Court judge in this case. It’s been suggested to me that it might be possible for the State’s Attorney to obtain a conviction using only the transcript of the extension hearing with no need for further testimony from me.

At this point, the four cases are in the hands of the State’s Attorney’s Office. I’m waiting to see what they do this time.

UPDATE—The poor Cabin Boy’s angular momentum must be staggering considering how fast he’s spinning. He seems to think that I have to prove where I was. No. I don’t. If he files a motion for change of venue, he will have to prove his assertion that I was never in Carroll County when he violated the peace order. It’s the person making a motion who has to prove the “facts” backing it.

Oh, and the Cabin Boy also keeps insisting that Judge Stansfield didn’t find that his tweets violated the order.

Uh, huh.

In his findings, the judge described those tweets as contact “which Mr. Hoge should not have received.” The Cabin Boy’s ongoing violations of the peace order were the justification for extending it, the proof that he was likely to continue to engage in harassment.

Bonus Prevarication Du Jour

Bill Schmalfeldt is now trying to spin his misunderstanding of the legal concepts of jurisdiction and venue into a story that I agree that he should be tried in Howard County instead of Carroll County. He posted this over at Patriot-Ombudsman (No, I won’t link to it.).P-O20140109Unfortunately for the Cabin Boy, harassment occurs where the victim is located. Since I was at home in Carroll County when I read his tweets, the crime that he seems to be admitting to in his post occurred in Carroll County and is chargeable and triable there.

For me, the most interesting thing about the Cabin Boy’s post is how I learned about it. But I’ll save that for later.

UPDATE—The rule about the crime occurring at the location of the victim is old, old case law. An example of its application to a Maryland harassment case can be found in Galloway v. State, 781 A.2d 851 (2001). Galloway was a prisoner in a state facility in Washington County who harassed his victim by mail. The victim was in Anne Arundel County. Galloway was charged, tried, and convicted in Anne Arundel County. He appealed his case, and the Court of Appeals upheld his conviction. He appealed to the U. S. Supreme Court which declined to hear his appeal.

UPDATE 2—The Cabin Boy is trying claim that since Galloway had lived in Anne Arundel County prior to his incarceration, that he was a resident of that county when he mailed his letters from prison. That is, of course, wrong. Both the state and the federal census view the place of incarceration as a prisoner’s residence. Since 2010, Maryland has been rejiggering the federal census data with the pre-conviction address of prisoners in order to “move” them from rural areas (where most prisons are) to the urban areas for the purpose of drawing legislative districts. This has the effect of reducing the apparent population of rural counties (Republican voting) so that they receive fewer seats in the Legislature. However, Galloway was charged and tired over a decade before that law was enacted, so he would have been considered a resident of Washington County even for legislative reapportionment at the time of his harassment trial. Indeed, a prisoner in Washington County is still considered resident there by the State of Maryland for every purpose except gerrymandering.

The Cabin Boy Strikes Back

So Bill Schmalfeldt says that he’s challenging the extension of the Hoge “verses” Schmalfeldt peace order (in iambic pentameter, I hope). I haven’t been served yet, but, considering that he is saying he’s doing something foolish, it’s probably safe to believe him.

This whole peace order thing is beginning to remind me of a scene from Monty Python and the Holy Grail. I’ve whacked the Cabin Boy twice now, the peace order and the extension, and he thinks he is going to kick my ass.Monty Python Black KnightI suspect his bluster during his appeal will be analogous to the Black Knight’s, and he’ll probably enjoy the same level of success.

BLACK KNIGHT: Just a flesh wound. [Kicks Arthur]
ARTHUR: Look, stop that.
BLACK KNIGHT: Chicken! Chicken!
ARTHUR: Look, I’ll have your leg. Right! [Cuts off a leg]
BLACK KNIGHT: Right, I’ll do you for that!
ARTHUR: You’ll what?
BLACK KNIGHT: Come ‘ere!
ARTHUR: What are you going to do, bleed on me?
BLACK KNIGHT: I’m invincible!
ARTHUR: You’re a loony.

The big difference is Holy Grail is a silly movie while the Cabin Boy’s antics are all too real.

Is the Cabin Boy Appealing?

The deadline for filing a notice of appeal of the extension of the Hoge v. Schmalfeldt peace order with the Circuit Court was close of business today. Last Thursday, he stated his intention to appeal and published this—Appeal2We shall see if he followed through.

BTW, verses is the plural of verse, meaning writing arranged in a metrical rhythm. Versus is a preposition meaning against.

What Does the Cabin Boy Have in Common with OJ?

OJ was acquitted at his murder trial. Bill Schmalfeldt had the first set of criminal charges relating to his harassment of me dropped. Both beat the rap as criminals.

OJ was found to be responsible for the death of his wife and was adjudicated a murderer in a civil trial. Bill Schmalfeldt was found to be responsible for my harassment and was adjudicated a harasser in a civil trial.

A civil adjudication does not bring the same penalties as a criminal conviction, but it is a finding by a court. Bill Schmalfeldt is an adjudicated harasser. His appeals related to that matter have been exhausted, and that finding has not been overturned. None of his whining will change the legal fact that he is an adjudicated harasser.

Money and Mouths

BaghdadBlobBleg20140104There’s an old expression that encourages one to put one’s money where one’s mouth is. As can be seen in the unchanged total in Baghdad Blob’s Bleg (Bill Schmalfeldt’s fundraiser seeking $25,000 to fund a lawsuit against me), none of the Cabin Boy’s Internet buddies have given anything to his effort.

Matt Osborne $0
XCitizen10 zip
William Ferguson nada
WhoisNumberNone zilch
Breitbartunmask nothing
x3n0ph0n zero
Neal Rauhauser pfft

I can understand not wanting to throw good money after bad, but it’s pathetic that they can’t come up with a few bucks.


Bonus Prevarications Du Jour

Baghdad Blob has told a couple of whoppers this morning in reaction to today’s Prevarication Du Jour. Let’s examine them in turn.db201401061241ZI 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.

db201401061304ZI’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.

BaghdadBlob20140105The 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.

Prevarication Du Jour

Here’s another excerpt from Bill Schmalfeldt’s whiny post at Patriot-Ombudsman (No, I won’t link to it.) about the possibility of his being held accountable for some of his violations of the peace order issued against him.P-O20140105aNothing threatening?WMSBroad201311072253ZThat tweet is a threat to file a criminal charge against me if I were to take perfectly legal steps to attempt to have the peace order enforced. I’m told that the technical legal term for such a threat is extortion. BTW, that tweet was not the only one containing such a threat. Nor are threats of extortion the only kind I’ve received from Schmalfeldt.

Nothing harassing?

Three obscene images were introduced into evidence during the hearing on my motion for an extension of the peace order. One was a picture of me in which the Cabin Boy had photoshopped an object into my hands. The other two were homoerotic porn into which the Cabin Boy had photoshopped my face. Schmalfeldt had posted the images on the Internet, on both Twitter and his various websites. The judge found that to be harassment and sealed the exhibit containing the pictures.

Those are just a couple of examples of the facts that contradict the Cabin Boy’s claim.


Prevarication Du Jour

Bill Schmalfeldt has a whiny post over at Patriot-Ombudsman (No, I won’t link to it.) complaining that it appears he may be held accountable for some of his violations of the peace order issued against him.P-O20140105Poor Cabin Boy! He seems incapable of telling the truth.

Actually, I only filed two peace order petitions against Bill Schmalfeldt. The first was initially denied because Judge Rasinsky was not convinced that the Cabin Boy had proper notice to stop contacting me. The judge found that all the other elements were proven and warned Schmalfeldt to leave me alone or face the prospect of criminal charges.

The warning I want to give you is very specific, and it’s not an unusual warning for me to give. The battle line is drawn. He doesn’t want to hear from you, and that means no specific things addressed to him. If I was convinced that you had been put on notice and there were a course of conduct specifically addressed to him, I believe that that is something in the ordinary context of events that this statute would cover. Ah, I didn’t write the statute, but it’s constitutional up to this point, and it can circumscribe various freedoms that you might, in fact, have. Plus, it can also subject you ultimately, as it already has, to a criminal case where you may or may not win, I don’t know, [inaudible] look at the criminal case. I have it here. [inaudible] You’ve got to ask yourself, “Is it worth it?” You may conclude that it is. Some people, ah, are willing to go to jail for their beliefs, but I see that as a risk in this, ah, ongoing exploration of Internet First Amendment rights. Just a thought to share with you. I’m not going to grant the Peace Order for the reason I stated, but you are on notice, and hopefully, ah, you’ll abide by the conditions that Mr. Hoge has imposed in terms of your contact with him, and, ah, continue your debate in a peaceful, civil, and legal manner.

I filed a second peace order petition after the Cabin Boy ignored Judge Rasinsky’s notice to “abide by the conditions that Mr. Hoge has imposed in the terms of your contact with him.” Schmalfeldt’s lawyer offered a motion to dismiss based on the idea that the harassment had been via electronic means and that it was some how exempt from the peace order statute. Judge Green bought his argument and dismissed the case without a hearing. A careful listening to the court audio does not reveal any instance of the judge commenting that I should “man up” and take it if I’m going to dish it out.

Meanwhile, I found and confirmed airtight evidence that the Cabin Boy had not only received my notice to stop contacting me but had commented about it online. With that missing piece in hand, I appealed the first case to the Circuit Court. Judge Stansfield looked at the evidence and granted the first peace order. I didn’t bother to appeal the second case because there was no need for a redundant order. I should note that part of Schmalfeldt’s defense in the Circuit Court was the cockamamie idea that electronic harassment is exempt from the peace order statute. The Circuit Court ruled that electronic harassment, like telephone harassment, is included under the general statute even though it also has a special statute of its own and, therefore, can trigger a peace order. The Court of Appeals declined review of that ruling.

While it’s true that the Cabin Boy had to go to court three times before I was able to secure a peace order, there were only two petitions. He’s been to court two more times in the same case. Once, when he sought to have the order modified; he failed. And again, when I sought to have the order extended; I was successful.

He may have to go to court again on criminal charges related to his violations of the order. It will be up to the State’s Attorney’s Office as to whether those cases go forward. Given that Judge Stansfield explicitly found that the 470 tweets entered into evidence at the last hearing violated his order and that all of the 351 tweets cited in the charging documents are included in the 470, it will be interesting to see what the State’s Attorney’s Office decides to do.

UPDATE—Stacy McCain has his take on the Cabin Boy’s post here.

Baghdad Blob’s New Bleg

As some of you may remember, Bill Schmalfeldt tried to raise $10,000 last year to fund a lawsuit against me. He received no donations. This year, he’s going first class and has a blegging campaign going to raise $25,000 (No, I won’t link to it.) As of the drafting of this post, he hasn’t raised a dime.

The following is from his appeal:

[O]ne individual was successful in getting a “peace order” against me. This gave the “Google Bombers” leave to refer to me as an adjudicated harasser. I am appealing that decision in Maryland’s highest courts.

The finding in Hoge v. Schmalfeldt that he harassed me was the basis for the peace order being issued. Schmalfeldt has already appealed the Circuit Court’s decision to the Maryland Court of Appeals (the state’s highest court) and his petition for a writ of certiorari was denied. All of his state appeals are exhausted, so, unless he is planning to file a petition for a writ of certiorari with the Supreme Court of the United States on or before 19 January, that matter is decided. After that deadline, his last opportunity for appeal will have expired. Schmalfeldt often confuses one legal term with another. It may be that what he really means is that he’s appealing the six-month extension of the peace order. Whatever the case, Bill Schmalfeldt has been adjudicated a harasser, and, after 19 January, that will be unappealably final. Game over.

The Cabin Boy also writes that

I can’t find an attorney willing to represent me on a contingency …

which isn’t surprising. He has no real case. If he did, he could easily find a lawyer who would be willing to represent him on a fee-contingent basis.

… and filing a lawsuit pro se is beyond my means and ability.

That, at least, shows that he may have learned something from his foray into pro se litigation during the hearings on his motion to modify the peace order and my motion to extend it.


Hoge Logic Explained

DBR201312061621ZYep. That’s it. And it’s the same logic that makes my 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 …

Prevarication Du Jour

Bill Schmalfeldt seems to think … no, that’s the wrong word … Bill Schmalfeldt seem to believe that I am under some obligation to block his various accounts on Twitter and other social media.WMSBroad201311150134ZSchmalfeldt is an adjudicated harasser who has had a peace order (see below) issued against him. It orders that he SHALL NOT contact (in person, by telephone, in writing, or by any other means), attempt to contact, or harass me. What does that mean?

Contact means any sort of interaction not just communication.

In person requires that he stay away from me. If, for example, he were shopping in a store and I walked in, he would be required to leave if necessary to avoid me. He is the one obligated to break contact.

By telephone means no phone calls. The Cabin Boy is supposed to refrain from calling me. I am under no obligation to change my phone numbers or leave my phone off the hook. Aside: the case law that makes each separate contact a separate violation stems from the case of a jerk who kept hitting the redial button on his phone, Triggs v. State, 852 A.2d 114 (2004).

In writing includes all forms of written communication. No notes slipped under the door. No mail. He not supposed to send me anything. I don’t have to stop my mail delivery or start using a blind post office box.

Any other means means just that. Contact via smoke signals, ham radio, semaphore flags, even Twitter and blog comments, are all prohibited. He is supposed to refrain from contacting me. I don’t have to change my email address. I don’t have to stay off the 20 meter amateur radio band. I don’t have to disable any functionality on my blog comment system. I don’t have to block him on Twitter.

The Cabin Boy is supposed to leave me alone. Moreover, he isn’t even supposed to try to contact me, and that includes getting someone else to deliver a message for him.

There are very few exceptions for such things as service of legal process and in-court communication.

Finally, he not supposed to harass me. That includes engaging in the sort of behavior which caused the peace order to be issued, i.e., continuing to contact me without a legal purpose after having been told to stop. Note that the judge explained to him that meant and that the Cabin Boy has chosen to ignore those instructions.

But the net is this—Bill Schmalfeldt’s criminal behavior resulted in a peace order. If he is inconvenienced by it, that’s his problem and not anyone else’s.

Prevarication Du Jour

Apparently, Bill Schmalfeldt doesn’t think very much of the petitions I filed with the Circuit Court last week. Here’s 21 seconds from a video he posted commenting on them.

Video Credit: pupsoc dot com. Fair use for commentary and criticism.

That’s the copy of my petition for a show cause order (contempt of court) that he rips up. I wonder … is he trying to set up an insanity defense?

UPDATE—Well, well, well, … Everything is not proceeding as I have foreseen. I had no idea that the Cabin Boy would do something this mind-bogglingly stupid.

Stupid is as Stupid Does

You know that definition of insanity about doing the same thing over and over again expecting a different result? Maybe Bill Schmalfeldt is insane rather than simply stupid.WMSBroad201311071924ZHe’s tried that argument twice in the Circuit Court, and it failed both times. He tried that argument with the Court of Appeals, and that court found nothing in his petition worth reviewing. Would the Gentle Reader care to guess how it will go over with the District Court which is bound  by the precedents set by higher courts?

BTW, neither the Legislature nor the Attorney General have ever “ruled” on @mentions or @replies on Twitter. The Legislature doesn’t “rule” on such things. It passes laws, and it has never passed a law exempting messages directed to and received by a person—which is effectively what Twitters Rules and Best Practices say happens with @mentions and @replies.

A mention is any Twitter update that contains “@username” anywhere in the body of the Tweet. (Yes, this means that @replies are also considered mentions.)

We collect these messages, as well as all your @replies, in the Mentions tab on the Connect page.

If you include more than one person’s name in your Tweet and you use the @username format, all of those people will see the Tweet in their Mentions tab.

The Attorney General doesn’t “rule” on such things either. The AG’s office has written advisory letters concerning how it believed the electronic mail harassment statute should be interpreted, but the courts are not bound by the AG’s advice.

The Cabin Boy is free to try to argue his point of view a third time expecting a different result.

Team Kimberlin Post of the Day

On 16 October, there was a hearing in the Circuit Court on Bill Schmalfedt’s motion to modify the peace order issued against him. The motion was denied, and the original order was left in place. The next day, the Court of Appeals denied Schmalfeldt’s appeal, essentially upholding the Circuit Court’s rulings. The peace order says that Schmalfeldt SHALL NOT (My caps lock didn’t stick; the order is all caps at that point.) contact me by any means. Period. @mentions and @replies on Twitter are within the scope of the order.

So what did the Cabin Boy do? He began tweeting to me within an hour-and-a-half of the judge’s ruling on the 16th, and he’s kept it up. Last Friday, I showed what he’d been doing to a District Court Commissioner. The Commissioner charged Schmalfeldt with one count of electronic mail harassment, one count under the general harassment statute, and 36 counts of failure to comply with the peace order—one for each tweet. (n.b.: The Commissioner has charged Schmalfeldt. I haven’t.)

So how has the Cabin Boy responded? He’s begun tweeting to me at an even greater rate. As of 11:45 ET last night, here’s how serial harasser Schmalfeldt was doing:scream-o-tweets

Gentle Reader, the possible penalties for the first count of violating a peace order is 90 days in the slammer or a $500 fine. All subsequent offenses can bring up to a year or up to 2500 bucks.

145 X $2500 + $500 = $363,000.