Team Kimberlin Post of the Day

Here’s the TKPOTD from three years ago today. It reports on one of odder moments during the Hoge v. Kimberlin, et al. case.

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The Gentle Reader may wonder what part of the evidence and testimony offered during the Hoge v. Kimberlin, et al. trial caused Judge Hecker to find that the Kimberlins had made statements in their Applications for Statement of Charges that they could not have reasonably believed. One particular incident comes to mind.

During my direct examination of Tetyana Kimberlin, she began denying the contents of various documents she had filed against her husband, claiming that they had been written by Aaron Walker who had exerted some form of undue influence on her. Then I asked her about a protective order petition she filed several days before she met me and more than a week before she met Aaron. When she started to claim that parts of it were untrue, the Judge stopped her. He reminded her that the petition had be signed under penalty of perjury, and then he advised her of her right to remain silent under the Fifth Amendment.

That was the end of that line of questioning.

UPDATE—A question has been raised in the comments about the propriety of the judge’s warning to Tetyana Kimberlin. I believe that is was proper because she was proceeding pro se, and it was obvious that she was unaware of the potential consequences of her testimony. In fact, his warning resulted in her petition for a protective order being admitted into evidence with the presumption that it was truthful—which contradicted Brett Kimberlin’s testimony. That helped my case.

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Upon reflection, I don’t believe that the Kimberlins did any real planning of a joint defense in that case.

Meanwhile, as of 11:35 pm ET Wednesday—

Team Kimberlin Post of the Day

One of the reasons that Brett Kimberlin has done so poorly with his pro se lawfare is that he’s screwed up the discovery process in all of cases he’s been involved in. The TKPOTD for four years ago today dealt with one of his failed motions seeking a protective order in one of his attempts to get out of providing evidence to an opposing party.

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The Kimberlins have filed a motion for a protective order in the Walker v. Kimberlin, et al. lawsuit. They aren’t seeking protection of documents that are turned over as a part of discover. They want to be completely excused from having to provide any discovery.

Their basic argument boil down to: We are special snowflakes and should not have to produce evidence of the allegations we make. The court should trust us, and we should be allowed to blindside the plaintiff with surprise evidence if this case ever makes it to trial.

popcorn4bkOf course, that’s legal rubbish, but I’ll leave it to Aaron Walker to demolish their motion when he files an opposition.

Meanwhile, it looks as if Aaron has asked some probing questions in the discovery he served on the Kimberlins. It will be interesting to see what might come out in a motion for summary judgment—if one is needed. If the court enforces the Kimberlins’ default, …

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While the Kimberlins didn’t wind up in default, their antics would up result in the court sanctioning Tetyana Kimberlin for failure to be deposed during discovery.

BTW, every single discovery item that Kimberlin asserted was irrelevant related to an allegations in the false criminal charges that Brett or Tetyana Kimberlin had filed against Aaron Walker.

Team Kimberlin Post of the Day

Yesterday and the day before, I wrote about Aaron Walker’s appeal of the Walker v Maryland, et al. lawsuit that is before the Maryland Court of Special Appeals. Two days ago, I summarized the background of the case. Yesterday, I dealt with Aaron’s appeal of the constitutionality of the Maryland laws used by the Kimberlins to bring the false criminal charges underlying the civil suit. Today, I’ll take a look at the case as it relates to the Kimberlins.

I’m not going to go into much detail about Aaron’s appeal. It’s based on errors Aaron says were made by the Circuit Court during the trail; he’s seeking a new trial.

However, I am going to present an overview of the Kimberlins’ cross appeal. Yes, they are appealing their victory. Here are the main points they make in their cross appeal.

First, they argue that the Maryland statutes Aaron was charged under are constitutional. So what? Even if they had standing to argue on behalf to the State, the constitutionality of a law has nothing to do with whether it was used to maliciously prosecute someone.

Second, the Kimberlins argue that they should be immune from suit because of “victim’s litigation privilege.” As Judge Mason told them when they brought up that bogus defense during a hearing in the Circuit Court, if that if such a defense were proper, the tort of malicious prosecution could not exist. Even if it did, litigation privilege applies to the parties in a court action, and the Kimberlins were not parties in either of the State v. Walker cases.

Third, they argue that the Circuit court erred by not granting summary judgment in their favor. So what? They won at trial, so any such error is moot. Further, Judge Mason found that there were material facts in dispute which need to be presented to a jury, so summary judgment would have been improper.

Fourth, the Kimberlins argue that the Circuit Court erred when it sealed certain documents the they filed. Those documents made false and salacious claims about a third party who was not involved in the case. Sealing them was proper. Indeed, if the Court erred with respect to those documents, it was by failing to sanction the Kimberlins for filing them in violation of the Maryland Rules.

Fifth, they argue that the Circuit Court erred “by denying costs to the Kimberlins while granting costs to Walker.” That claim is, quite simply, a lie. The Circuit Court denied costs to both parties. Period. It did sanction Tetyana Kimberlin for failing to be deposed, and she has not yet paid that sanction.

Sixth, they argue that the Circuit Court erred by failing to correct the judgment to reflect the jury’s verdict sheet. The judgement states: “Specifically, Mr. Walker represented Tetyana Kimberlin as a lawyer on a pro bono basis and a legal defense fund was established originally with her consent.” The jury found that: “Kimberlin withheld that his wife was offered a defense fund and pro bono legal help.” So, The Dread Deadbeat Pro-Se Kimberlin wants the judgment to be amended to point out how he lied by omission on one of the Applications for Statement of Charges. OK, maybe he should get that one.

Seventh, they claim that the Circuit Court erred by prohibiting them “from introducing evidence during the trial to establish motive and present a robust defense.” So what? They won. Any such error, if it happened (and it didn’t), is moot.

I’ve noted that the outcomes of this appeal and Schmalfeldt’s LOLsuit VIII would affect the next steps in my response to Team Kimberlin’s lawfare. Now, that the Cabin Boy’s™ frivolous suit is dead, we have only to wait for to see how the Court of Special Appeals rules before …

Stay tuned.

UPDATE—2018 JAN 05 05:12:00 UTC tag/brett-kimberlin
2018 JAN 05 05:25:00 UTC tag/walker-v-kimberlin-et-aal-appeal

Team Kimberlin Post of the Day

The appeal of the Walker v. Maryland, et al. lawsuit is before the Maryland Court of Special Appeals. I have not done much reporting on the course of that appeal because I have been working with Aaron Walker as his paralegal. I know too much about the case, and I did not want to divulge too much to the adverse parties with a slip of the keyboard. There will be no more briefing on the case after today, so I’m going to begin reporting what I know.

The appellees in the case are the State of Maryland and Brett and Tetyana Kimberlin. Originally, Aaron sued the State seeking to have the laws that he had been falsely charged under declared unconstitutional. The Kimberlins were added as defendants in devolved into a malicious prosecution claim. When Judge Mason found the laws constitutional and dismissed the case against the State, he ordered the case severed into two separate cases so that the claim against the Kimberlins could continue, but the Clerk of the Circuit Court has refused to obey that order. Thus, what should have been two separate appeals is one.

Today, we’ll take a look at the underlying facts of the case. Tomorrow and the next day, we’ll take a look at the cases against the two sets of appellees.

In July, 2013, Brett and Tetyana Kimberlin were estranged from each other. After Brett (I will refer to the Kimberlins by their first names for simplicity) sought a protective order against his wife and filed a bogus petition for an involuntary psych evaluation of her, Aaron Walker offered her pro bono legal assistance and, working with me, arranged for her to have representation by a Maryland lawyer. In an apparent attempt at revenge for Aaron’s helping Tetyana, Brett filed a false Application for Statement of Charges which resulted in Aaron being charged with harassment under Maryland Criminal Law § 3-803. The basis of the charge was that Aaron had written about Brett on Twitter and his blog. The charge was dropped.

As the Gentle Reader who has followed this blog for a while knows, Brett continued his lawfare against Aaron and others, including me. In March, 2015, he filed a bogus peace order petition against me which was denied by both the District and Circuit Courts. The basis of his petition was that I had allegedly harassed Tetyana’s elder daughter by writing about Brett on this blog. Rather than appeal that petition further, he drafted and Tetyana filed false Applications for Statement of Charges against Aaron and me which resulted in our being charged with online harassment of a minor under Maryland Criminal Law § 3-805(b)(2). Those charges were dropped.

Aaron sued the State of Maryland, claiming that the State was acting as Brett’s catspaw in the suppression of his First Amendment rights and that the laws being used were unconstitutional. The Circuit Court ruled that Aaron did not have standing his suit as it was originally drafted, but allowed him to amend his complaint. The Kimberlins were added as defendants. As noted above, Judge Mason found the laws constitutional and dismissed the case against the State. The case went to trial against the Kimberlins, and the Court found that they had probable cause to file their complaints. Aaron is appealing the finding that §§ 3-803 and 3-805 are constitutional and certain procedural errors during the trial.

Tomorrow, we’ll take a look at Aaron’s constitutional challenge to Maryland’s harassment statutes and how they can have the effect of chilling free speech on the Internet.

UPDATE—2018 JAN 03 05:03:33 UTC tag/walker-v-kimberlin-et-al
2018 JAN 03 05:03:48 UTC tag/graces-law
2018 JAN 03 05:13:39 UTC tag/tetyana-kimberlin

Team Kimberlin Post of the Day

The Gentle Reader may wonder what part of the evidence and testimony offered during the Hoge v. Kimberlin, et al. trial caused Judge Hecker to find that the Kimberlins had made statements in their Applications for Statement of Charges that they could not have reasonably believed. One particular incident comes to mind.

During my direct examination of Tetyana Kimberlin, she began denying the contents of various documents she had filed against her husband, claiming that they had been written by Aaron Walker who had exerted some form of undue influence on her. Then I asked her about a protective order petition she filed several days before she met me and more than a week before she met Aaron. When she started to claim that parts of it were untrue, the Judge stopped her. He reminded her that the petition had be signed under penalty of perjury, and then he advised her of her right to remain silent under the Fifth Amendment.

That was the end of that line of questioning.

UPDATE—A question has been raised in the comments about the propriety of the judge’s warning to Tetyana Kimberlin. I believe that is was proper because she was proceeding pro se, and it was obvious that she was unaware of the potential consequences of her testimony. In fact, his warning resulted in her petition for a protective order being admitted into evidence with the presumption that it was truthful—which contradicted Brett Kimberlin’s testimony. That helped my case.

What Happened in Court Today

Tetyana Kimber was found to be in contempt of court for her failures to appear. She will be allowed to purge her contempt by obeying all further order of the court.

Bill Schmalfeldt was found not to be in contempt for his recording of the court audio because of what the judge views as a hole in the law. He said that he has learned a lesson and will tighten up future orders allowing remote testimony.

The Kimberlins and I have finished our closing statements. Judge Hecker has taken the case under advisement and has said he will issue his ruling at 1:30 pm tomorrow.

UPDATE—Apparently, a copy of the “written testimony” the Cabin Boy™ published made its way to the Clerk’s Office, was docketed, and was forwarded to Judge Hecker. I asked that it be admitted into evidence as a statement against interest by Schmalfeldt.

Team Kimberlin Post of the Day

There are show cause hearings and a trial scheduled for today in the Hoge v. Kimberlin, et al. lawsuit beginning at 8:45 this morning in the Circuit Court for Carroll County. My ability to foresee how things will go ends at 8:45 am today. After that, the results depend on the findings made by Judge Hecker.

Team Kimberlin Post of the Day

The Scheduling Order for the Hoge v. Kimberlin, et al. lawsuit required that the parties provide certain information to the court not later than close of business last Friday. I filed this last Thursday.

Everything is proceeding as I have foreseen.

Team Kimberlin Post of the Day

I spent Thursday evening going over various online case dockets to make sure that I’ve kept up with all the open items in the various Team Kimberlin related cases and appeals. I believe I’m caught up, and I also believe that some of the other parties aren’t.

Everything is proceeding as I have foreseen.

Team Kimberlin Post of the Day

Here’s the text of Judge Hecker’s recent order in Hoge v. Kimberlin, et al. I believe this ties up all the loose ends other than the show cause hearings for Tetyana Kimberlin and The Dreadful Pro-Se Schmalfeldt and matters directly related to the trial.

Everything is proceeding as I have foreseen.

Team Kimberlin Post of the Day

The Dread Pro-Se Kimberlin has filed an improper reply to one of Aaron Walker’s filings in his appeal of Walker v. Maryland, et al. in the Maryland Court of Special Appeals. That’s the combined case against the State and the Kimberlins. The suit against the State seeks to have Maryland’s harassment laws declared unconstitutional as applied to the Internet on First Amendment and other grounds. The case against the Kimberlins seek damages for malicious prosecution using those laws.

Here’s the certificate of service filed with TDPK’s improper reply.(Alexis Rohde is the lawyer representing the State.)

The Gentle Reader may notice that a word appears to be missing from Kimberlin’s last sentence. Actually, there appears to be a great deal more missing than just one word. The most glaring omission is the signature for Tetyana Kimberlin’s attorney who should be filing the reply on her behalf.

Meanwhile, we’re at T-minus 14 days and counting in Hoge v. Kimberlin, et al.

A Non-Hearing

Tetyana Kimberlin failed to appear for her show cause hearing for failure to appear. However, she has also successfully dodged service of the court’s sua sponte show cause order, and the Maryland Rules do not permit the hearing to held until she is served. Therefore, Judge Hecker (who is pretty much running the case by the book) continued the hearing until after she is served. Because the writ of summons is still outstanding, no new paperwork was issued.

While this is not my preferred result, it is one of the two possible outcomes I expected.

The next hearings are scheduled immediately before the trial begins on 21 August.

T-minus 18 days and counting.

Team Kimberlin Post of the Day

This came in yesterday’s mail—

My lawyer will handle it.

Note that I have not redacted the address shown for the Cabin Boy™ because it is no longer valid since he has skulked away from that location.

Nothing is proceeding as the Cabin Boy™ has hallucinated.

Tetyana Kimberlin’s show cause hearing for failure to appear at the pre-trial conference in the Hoge v. Kimberlin, et al. lawsuit is scheduled for 1:30 this afternoon.

Oh, and the count in Hoge v. Kimberlin, et al. has now shifted to T-minus 18 days and counting.

Team Kimberlin Post of the Day

Now that the Cabin Boy’s show cause hearing has been continued until the date of the Hoge v. Kimberlin, et al. trial, the next event is Tetyana Kimberlin’s show cause hearing on 14 July. She has been ordered to show cause why she should not be sanctioned for failure to appear at the pre-trial conference for the case.

Everything is proceeding as I have foreseen.

T-minus 15 days and counting.

UPDATE—There’s been some speculation in the comments below about the contents of the “notice” which The Dread Pro-Se Kimberlin sent to the court concerning the show cause order for Mrs. Kimberlin. I was served with a copy, and the judge briefly discussed it’s contents during the hearing yesterday. For now, I don’t see any advantage in publicly commenting on the contents of that “notice” until after the hearing on 14 July.

Team Kimberlin Post of the Day

Judge Hecker issued a show cause order to Tetyana Kimberlin for her failure to appear at the pretrial conference in the Hoge v. Kimberlin, et al. lawsuit. The order was issued on 6 June and sent to the Montgomery County Sheriff for service. A return of service from the Montgomery County Sheriff’s Office hasn’t been posted to the online docket yet.

Hmmmm.

T-minus 4 days and counting.