There is one bright spot in the otherwise shameful opinion of the Maryland Court of Special Appeals in the Walker v. Maryland, et al. case—the Kimberlins’ counterclaim with respect to sanctions was denied as well. Tetyana Kimberlin is still obligated to pay.
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 …
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
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
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.
The verdict in the Hoge v. Kimberlin, et al. lawsuit is scheduled to be delivered at 1:30 this afternoon.
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.
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.