IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

----------------------------x
:
:
BRETT KIMBERLIN :
:
Plaintiff, :
:
v. : Civil No. 380966
:
AARON WALKER, ET AL :
:
Defendant. :
:
----------------------------x



HEARING







Rockville, Maryland August 12, 2014










NATIONAL CAPITOL CONTRACTING, LLC
200 North Glebe Road, Suite 1016
Arlington, VA 22203
(703) 243-9696

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND



----------------------------x
:
:
BRETT KIMBERLIN :
:
Plaintiff, :
:
v. : Civil No. 380966
:
AARON WALKER, ET AL :
:
Defendant. :
:
----------------------------x

Rockville, Maryland

August 12, 2014


WHEREUPON, the proceedings in the above-entitled
matter commenced
BEFORE: THE HONORABLE ERIC M. JOHNSON, JUDGE

APPEARANCES:

FOR THE PLAINTIFF:
BRETT KIMBERLIN, Pro Se
8100 Beech Tree Road
Bethesda, MD 20817

FOR THE DEFENDANTS:
F. PATRICK OSTRONIC, Esq.
932 Hungerford Drive, Suite 28A
Rockville, MD 20850

ALI AKBAR, Pro Se
200 Capstone Drive, #108
Lynchburg, VA 24502

INDEX


Page

Opening Statements:

Brett Kimberlin 15
Pro Se Plaintiff

F. Patrick Ostronic, Esq. 31
For the Defendant

Ali Akbar 35
Pro Se Defendant


VOIR
WITNESSES DIRECT CROSS REDIRECT RECROSS DIRE

For the Plaintiff:
Aaron Walker 52 -- -- -- --
William Hoge 130 145/146 147 -- --
Ali Akbar 149 -- -- -- --
Robert McCain 158 196 200 209 --
Kelsie Kimberlin 217 -- -- -- --


Page

Judges Ruling 261












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P R O C E E D I N G S
MR. OSTRONIC: -- from yesterday to revisit -- or to
redo some more research on the 9-104 issue. I did do some
issue, and I believe we have an additional analysis that would
be beneficial to our cause. And if I may approach, I can give
you a motion, your honor?
THE COURT: Sure.
MR. OSTRONIC: I can also hand you a copy of it.
THE COURT: I'll hear your argument.
MR. OSTRONIC: Basically, your honor, I'm relying on
Article 1, paragraph 26, of the Annotated Code of Maryland,
which says -- the meaning of may not -- In this code, and any
rule, regulation, or directive adopted under it, the phrase 'may
not' or phrases of like import have a mandatory negative effect
and establish a prohibition. And I think that's consistent
with the way we read the other prohibitions, which are also in
the Courts and Judicial Proceedings title. For instance, the
State cannot compel a minister to divulge what's been given to
them.
MR. KIMBERLIN: Yes, your honor, they're doing
everything to try to get me not to testify. They don't want the
truth. But you have the discretion to weight the probative
value of a 40-year-old teenage perjury conviction, which
occurred when I did not have counsel present, and the Supreme
Court has been very clear that if you don't have counsel
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present, that you can't use things against you. And the fact
that the judge, you know, mistakenly failed to say something on
the record, which would have expunged that conviction at 21, and
wanted to do so when I went back to him, but said that the
Seventh Circuit didn't allow these kind of decisions from the
Supreme Court to be retroactively applied. And it's simply not
fair to have me, a victim of these four defendants, being
attacked and not be able to defend myself. They've done
everything possible. And, you know, keep in mind, Judge Jordan
said that the statute was unconstitutional, he would allow me to
testify. I've been allowed to testify in front of you, two and
a half years ago. I've testified in front of Judge Burrell,
Judge Algeo. I've testified in front of all these judges, and
now I get in front of a jury and I'm all of a sudden not allowed
to testify? You know, when it comes down to crunch time, and
that's just not fair. A 40-year-old conviction, it has no
probative value at all.
MR. OSTRONIC: Your honor, may I?
THE COURT: Yes.
MR. OSTRONIC: First of all, I can -- or, we have a
transcript from the August 7th hearing. Judge Jordan never said
it was unconstitutional. He said he suspected it may be in
certain circumstances. Second of all, we do have evidence of an
authorized biography of Mr. Kimberlin, written about 20 years
ago, which discussed that very case, and he did have counsel.
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MR. KIMBERLIN: Your honor --
MR. OSTRONIC: And the book says, in there -- your
honor, if I may, this is the book Citizen K: The Deeply Weird
American Journey of Brett Kimberlin by Mark Singer, which
plaintiff here cooperated in. And it says here, at trial,
Another grand jury was convened, and this one indicted
Kimberlin for perjury. At trial, his lawyer repeated the
assertion that it made no sense for his client to be selling LSD
to people --
MR. KIMBERLIN: It --
MR. OSTRONIC: At trial, his --
THE COURT: Is that the same case?
MR. OSTRONIC: For perjury.
MR. KIMBERLIN: Judge, no, it wasn't the same case,
and he's trying to --
MR. OSTRONIC: For perjury.
MR. KIMBERLIN: No.
THE COURT: Wait, hold on a second. Don't talk to
him. Gentlemen, talk to the court, not to each other.
MR. KIMBERLIN: Okay.
MR. OSTRONIC: I'm sorry, your honor.
THE COURT: If you all want to talk to each other --
MR. KIMBERLIN: All right. It was not the same case.
I was --
THE COURT: -- I'll give you a break and let you go
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out in the hallway.
MR. KIMBERLIN: Sir, I was called in front of a grand
jury. I did not have counsel at the grand jury. I had counsel
at the trial, and counsel at that trial, and the judge at that
trial, said that I was being sentenced under the youth
corrections act. The youth corrections act says that at 21
years old, that conviction is expunged forever. The judge
failed to say these three words, no benefit finding, and that's
what Dorszynski said in the Supreme Court, if the judge doesn't
make a no benefit finding, the sentence is wrong. And the court
sent back all kinds of cases that were on appeal at that time,
the Supreme Court, and all those guys got to get resentenced.
My case just happened to fall right in that little crack, and so
I went back to the judge when I hit 21, and said I want my case
expunged under the youth corrections act like he thought, and
the judge says, Oh yeah, Dorszynski says I made a mistake,
okay. And the problem was in the Seventh Circuit, they
couldn't retroactively apply Dorszynski. That's it, it's a
simple little thing. And everybody -- I had counsel at trial,
but I did not have counsel at the grand jury.
MR. OSTRONIC: Your honor, I'll just point out that
Dorszynski was a Seventh Circuit Court case, so it did go back
to the case on a remand from the Supreme Court, and it did go
back up to the Seventh Circuit, and it was -- and the Seventh
Circuit then did consider what the trial court did and corrected
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-- but it was a Seventh Circuit Case.
MR. KIMBERLIN: But not -- well, of course it was a
Seventh Circuit case, but that's not the point. My case was not
Dorszynski. That wasn't my case. Dorszynski raised that issue
of the judge failing to make a no benefit finding at trial, and
his failure to make a no benefit finding at sentencing therefore
invalidated the sentence. And so in my case, everybody assumed
I was being sentenced under the youth corrections act, the judge
did not have the direction from the Supreme Court under
Dorszynski that he had to specifically say, I find that there's
no benefit from the youth corrections act and therefore I'm
sentencing Mr. Kimberlin as an adult. He didn't say that
because everybody assumed that I was being sentenced as a
juvenile, as a youth under the youth corrections act. And when
I went back and said Judge, you know, this thing needs to be
expunged. I hit 21, I didn't do anything wrong. And the judge
says, yeah, well, but I can't apply Dorszynski retroactively for
some -- due to whatever weird, legal, technical reason. You
know, had my case been on appeal when Dorszynski was ruled on,
it would have automatically applied, you know? And so that's
the issue. So for now, 40 years later, to say that I can't
defend myself, or testify in this case is totally unfair.
MR. OSTRONIC: Your honor, I will also point out, if I
may, that the youth corrections act, there would have been
legitimate reasons for somebody not to want to be sentenced
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under the youth corrections act. The youth corrections act
subjected you, at that time, to four to six years under the
supervision of the State. Mr. Kimberlin's sentence was for a
mere 30 days, of which he served 21, and it was just for a year.
So you would have had some real reasons why you wouldn't want to
--
MR. KIMBERLIN: Your honor, that's --
MR. OSTRONIC: Also, your honor, as documented in his
authorized biography, it notes that Mr. Kimberlin considered but
then decided not to file an appeal on his sentence.
THE COURT: All right, gentlemen, I think you've
exhausted your argument on that issue. Counsel, the court will
not change its ruling on the motions of yesterday. I think
what's troubling in this case is the time period that has
elapsed since this perjury conviction occurred, over 40 years
ago. That's a long time. And there are several other areas of
the law, for example, evidence of criminal history -- criminal
records would not be subject to be used for impeachment if it's
been a substantial -- more than 15 years since it occurred. I
think it's a question of fundamental fairness, and that'll be
it. I don't want to hear any more on the motion. The rulings
that the court made yesterday will stand. All right, bring the
jury in.
MR. OSTRONIC: Your honor, one other motion -- one
other matter, then?
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THE COURT: Yes, sure.
MR. OSTRONIC: Mr. Akbar here wishes to disengage me
as his counsel and self-represent.
THE COURT: Come up.
BEGIN BENCH CONFERENCE
MR. OSTRONIC: Your honor --
THE COURT: You've thought about this? I mean,
representing yourself -- you have a lawyer that at this point
has done a fine job in representing you.
MR. AKBAR: I think that there's added benefit. I
think that the plaintiff has benefited from being pro se. I
think that the jury will hear some things from me and arguments
that I'll make that a lawyer and a member of the bar wouldn't.
I'll try to keep it brief. I'm not going to exhaust cross-
examination or anything, but I'd like to make an appeal to the
jury.
THE COURT: Well, I don't want to -- the notion that
Mr. Kimberlin is getting any different treatment than he would
be getting if he was represented by a lawyer --
MR. AKBAR: And I wouldn't assert that to the jury.
THE COURT: -- I mean, you can disabuse yourself of
that. The rulings that this court has made had nothing to do
with whether he was represented by counsel. I think you ought
to really reconsider that.
MR. AKBAR: Well, I think that there's an emotional
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appeal that I can make with the jury that my attorney can't, so
regardless of the rulings, on the emotion --
THE COURT: Well, you certainly testify, and the jury
would hear that.
MR. AKBAR: I know. I know, but I think that I can
also make an argument, I can make assertions that won't be made
in Mr. Kimberlin's questioning of me, you know, during cross.
THE COURT: Why can't the questioning by counsel
elicit the same -- whatever that information is that you want
out, assuming arguendo that it's admissible in the first place?
And this is a problem that Mr. Kimberlin is going to run into --
MR. AKBAR: Right.
THE COURT: -- squarely into the rules of evidence.
MR. AKBAR: Can we have a couple minutes to reassess?
But I'm -- you know, I'm --
THE COURT: I'm inclined to have opening statements,
and then take a recess, and if you still are of that opinion,
we'll deal with it then.
MR. AKBAR: Then would I be allowed to give an opening
statement, then?
THE COURT: I'm not hearing a reason that -- legal --
MR. AKBAR: Because I'd like to make an argument, I'd
like to make a contention, I'm not saying that I would present -
- you know, there are fundamentally multiple, you know, legal
defense strategies that are at our disposal. They're going to
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pursue one, I'd like to pursue another, and I'd like to not tip
it off to Mr. Kimberlin.
THE COURT: Well, the problem is, he still represents
the other defendants, so he's still in the case.
MR. AKBAR: Yeah.
THE COURT: So if you want to represent yourself, do
you understand that a lawyer can be very helpful in --
MR. AKBAR: Yes, sir.
THE COURT: -- preparing you? A lawyer, he knows the
rules of evidence, he knows the rules of procedure, and -- let
me just ask, you're not a lawyer --
MR. AKBAR: Right.
THE COURT: -- you don't have any legal training or
anything? But you're still representing -- well, the other
defendants are not sitting at counsel table.
MR. AKBAR: We're just sitting up there because we
don't want a whole crowd of -- gaggle behind, and we asked
before about sitting down there, correct? About --
MR. OSTRONIC: I asked --
MR. AKBAR: Do you want them up front with us?
THE COURT: Yeah, I mean, it's kind of unusual that
the parties wouldn't be sitting there.
MR. OSTRONIC: We just had four of them, and it just
got crowded. We had the chairs, but it was all -- they were all
bunched up.
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THE COURT: Well, yeah, as long as the jury knows that
they are parties in this case.
MR. OSTRONIC: I'll -- I'm going to be pointing them
out in my opening statement.
THE COURT: Okay, all right. Okay. Well, I'll grant
your motion. So you're now representing who?
MR. OSTRONIC: Hoge, Walker --
THE COURT: And --
MR. OSTRONIC: McCain.
THE COURT: -- McCain, okay.
MR. KIMBERLIN: Your honor, I have -- may I say
something?
THE COURT: I don't know --
MR. KIMBERLIN: I mean --
THE COURT: -- how you could --
MR. KIMBERLIN: -- it just sounds to me like there's a
conflict in defenses, and I'm concerned that maybe they are
trying to finesse this to try and get in something that's not --
THE COURT: But whether he's represented by a lawyer,
that is not your call.
MR. KIMBERLIN: No, I know it's not. I know, but I'm
just saying that it may be a strategy here that they are trying
to get something in that counsel can't do for ethical reasons,
so they're trying to get it in through him.
THE COURT: Well, if it's not ethical for counsel,
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it's not ethical for him either, so we'll cross that bridge if
we get to it. Thank you. All right.
MR. OSTRONIC: Thank you, your honor.
THE COURT: We'll stop after opening statements if we
need to.
END BENCH CONFERENCE
THE COURT: Mr. Foreman, members of the jury, good
morning. Good wet morning. Mr. Clerk?
(Whereupon the jury was duly sworn.)
THE COURT: All right. Sir, you may address the jury.
OPENING STATEMENT BY BRETT KIMBERLIN,
PRO SE PLAINTIFF
MR. KIMBERLIN: Thank you. Good morning. My name is
Brett Kimberlin. I'm a father, I'm a husband, I'm a director of
a nonprofit called Justice Through Music, and I work with young
people to get them involved with civic participation. We've
worked with the State Department, brought democracy activists
across the world to get training at my nonprofit. I'm also a
musician, a composer. I've composed music for different movies,
independent movies. I create a lot of videos. I've created
videos on YouTube that have millions of views.
I'm also a felon. I was convicted 35 years ago of
something serious, and at that time it was something I didn't
do. I fought the case. I went through three trials. I was
found guilty, finally, after three. It was a very controversial
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case. It involved the use of hypnosis on witnesses. Six
witnesses were hypnotized. They testified that I did something.
There was other evidence. It was a circumstantial case. I was
given a 50-year sentence, 50 years. And rather than wallow in
the prison system, I got a double degree. I helped lots of
other inmates get out of jail, wrongfully -- or had sentences
overturned.
And my case generated some interest in the legal
community. One of the people that took an interest in my case
was a guy name Erwin Griswold. Erwin Griswold was a dean at
Harvard Law School. He was also the solicitor general of the
United States under Republican and Democratic administrations.
He argued more cases in the Supreme Court than any living human
being. He took my case, pro bono -- pro bono means no money --
because he said I was wrongfully convicted.
Dean Griswold was in his 80s at the time, and he
became a mentor to me. He introduced me to his wife, Harriet,
and Harriet was paraplegic. Polio. I would go to his
apartment, have dinner with him and his wife, and Dean Griswold
trusted me, and loved me, as a grandson, almost. When Dean
Griswold died, the wake was at the Supreme Court, and Harriet
invited me to take her to the Supreme Court. She had kids, but
she invited me. I was there with her. There was also Supreme
Court justices there, you know, that had been Supreme Court
justices and current Supreme Court justices. Every solicitor
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general was there, every attorney general. They were there, and
I was sitting next to Harriet. So, as you can guess, I wasn't
doing 50 years, if I was sitting next to Harriet.
So, that case was for explosives, for explosive
devices. There were eight explosive devices that occurred in
Indiana. A person was injured in one of those. The person
would eventually -- eventually committed suicide. His wife
filed suit against me for wrongful death. In another twist of
my life, the judge in the case, his name was Michael Dugan, III,
and it was Marion County Superior Court, Indianapolis, Judge
Dugan didn't let me go to the trial. I was in prison at the
time, and Judge Dugan ran into my attorney, my trial attorney,
his name was Nile Stanton, he ran into him in a bar in
Indianapolis. And he told Nile, he says, Listen, give me 10
grand, and I'll let Brett walk. So Nile came to me, he says,
Gee, you know, I ran into Judge Dugan, he says he wants 10
grand and you can walk. I said, Well, Nile, I didn't do that
crime, you know? I can't pay $10,000, that's not right. But
what I did do, is I contacted the FBI, and I told them, I said,
this guy's corrupt. What did the FBI do? They wiretapped his
chambers. Wiretapped his chambers, started to listen to all his
conversations. Guess what? They arrested him. They indicted
him. They gave him 18 years in jail. So I had a wrongful
conviction, and then I had a judgment against me that was issued
by a corrupt judge. I testified at that judge's sentencing, and
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the federal judge that sentenced him was pretty pissed off. You
know, corrupting the judicial system, and destroying lives like
mine. Eventually, that judgment was, for lack of a better word,
nullified. It's not out there anymore. I don't -- I'm not
subject to that judgment anymore.
So that's a little bit about my history. When I got
out of jail I was lucky, because in jail, I helped a lot of
immigrants, and one of those immigrants was trying to escape
religious persecution in the Soviet Union, and so I helped them
while I was in prison. And when I got out, I got a nice gift,
and that gift was, hey, you helped us, and now Ukraine has
broken away from the Soviet Union, and we want to help you. And
it was a lady and her son, Julia Karamin [phonetic sp] and Alex
Karamin, and Julia's ex-husband was named Valentine Karamin, and
Valentine Karamin happened to be counsel to the president of
Ukraine.
So Valentine flies over here from the Ukraine, and he
says, Brett, you've helped my family when you didn't even know
them. And he says, I want to help you. I need an American
partner to business in Ukraine. We've just become free. And
so the -- we ended up starting a business called LADA
International. Lada's the name of a car, and my partner was
involved in cars, so things moved along pretty quickly.
All of a sudden -- boom -- I'm flying to Ukraine every
couple weeks, I'm on President Kuchma's plane, I'm over here at
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Andrews Air Force Base, I'm at the player [phonetic sp] house,
and, you know, I mean, it was wild. I mean, here I just got out
of jail and I'm doing all this, and wow, this is pretty
interesting. A lot of money coming in, and we were selling
tires to the Ukrainian government, getting oil, and getting
steel, and all this stuff, and you all heard, there's a war
going on in Ukraine right now. I was in all those cities,
Donetsk, Mariupol, Krasnoarmiysk, all of those places, I was
there. I know those people.
And so one of those trips, I met a girl. That girl
became my wife. Now, I didn't go over there to get married. I
didn't even want to get married, you know? I'd been in jail a
long time. I wanted some freedom. And I didn't expect to get
married, but this girl -- her name was Tania, Tetyana, and she
was the niece of the deputy mayor of Dnipropetrovsk, which is
the second largest city in Ukraine.
And so at first, her mom -- her dad had gotten killed
by a -- in a dispute, a business dispute over there. She was a
single child. Her mother had a rough time after her dad died,
and Tania had a rough time, too. I mean, she was the apple in
her daddy's eye. But anyway, at first, you know, I just wanted
to help her out. I wanted to get her mother set up and stuff
like that. She went and stayed with some friends of mine in
Dnipropetrovsk. They sent her to English classes and things
like that. And eventually, her aunt brought her to the United
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States. She was 17. When she turned 18, we got married. Now
we have two beautiful kids; they're back there. You'll get to
meet one of them in a minute. Kelsie and Corrina [phonetic sp].
Kelsie's 15. Corrina's 10.
And so Tania, she loves America. She loves America.
She soaked it in. She went to -- she took college courses, she
took English as a second language, she got her high school
degree here. They wouldn't accept one from Ukraine, so she
redid it here, got her high school diploma -- high school
degree, not a diploma. And then she became a preschool teacher
at Kenwood Park Children's Center, which is near Whitman. And
then her mom died. Her mom had become an alcoholic. She died.
Tania, she took it really hard. Sent her home, she would go
home every couple -- every six months or something, and stay
with her family for four or five weeks, then come home. But
when her mom died, it was really hard. So she had a breakdown,
a nervous breakdown, a mental breakdown. She was suicidal. She
started suffering from depression, she started having bipolar
episodes. We had to -- I had to take the very difficult step as
a husband to get her help. She was suicidal at the time, so I
asked -- finally, I asked the court for assistance. I said,
Can we please get my wife evaluated? Can we please get her
help? And the court said yes, so she went to Suburban
Hospital, and stayed there for days or weeks. She came back,
she was much better, she was on medication. You know, she
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seemed to be getting better.
Then these guys came into our lives, Mr. Akbar, Mr.
Walker, Mr. Hoge, and Mr. McCain, they came into our lives. It
has been a nightmare ever since. It has been horrible ever
since. I'll tell you what they did. Mr. Walker right there,
he's an attorney. As an attorney, you know what he did on his
spare time? He had a blog called, Everyone Draw Mohammed. He
ran that blog, not in his real name, but in the name of Aaron
Worthing, and he had people from all over the world sending in
vile depictions of the prophet Mohammed. I'm not Muslim, I'm
Christian, but everybody has the right to believe what they
believe, and to do so without being defamed. So Mr. Walker, you
know, asked people to send these vile, nasty depictions of the
prophet Mohammed to his blog, and he would post them. And he
said, I want pictures that are Fatwa-worthy. A fatwa is an
edict by a cleric of the Muslim faith, it's a direction, it's an
order. And sometimes fatwas result in death sentences, or death
orders. Mr. Walker asked people to send -- eventually there
were 800 depictions, 800 depictions of the prophet Mohammed on
this blog. Our soldiers are getting killed overseas because of
this stuff. Benghazi, why did Benghazi happen? Because some
nut down in Florida defamed, blasphemed the prophet Mohammed.
Osama bin Laden, that was his rationale for killing Americans,
because people in America defamed the prophet Mohammed.
So all of a sudden, I got this other crazy guy, named
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Seth Allen, and he was attacking me, he's really more of a
mental case. I sued him in this court. Somehow, Mr. Walker and
Mr. Allen got involved with each other somehow, I don't know.
And Mr. Allen wrote Mr. Walker a letter, he says, I might as
well just come to Maryland and murder Brett Kimberlin. Murder
him. So Mr. Walker -- and this was sent to four different, or
five different people, and all these people on this list are --
they're this extreme tea-party wing of the parties out there.
And so the police called me, because one of those people on that
email list said, you know, this guy's about to murder Brett.
Jesus.
MR. OSTRONIC: Your honor, please?
THE COURT: Sustained.
MR. OSTRONIC: Thank you.
MR. KIMBERLIN: The police call me, I'm on vacation
with my wife and kids, out visiting my sister out West, and I
get a call in August, three years ago. And the cop says, I'm
from Massachusetts, Easton, Massachusetts, and there's this guy,
he's going to kill you when you come back to Maryland --
MR. OSTRONIC: Your honor.
THE COURT: Counsel, approach.
BEGIN BENCH CONFERENCE
MR. OSTRONIC: I cut as much slack as I could on this
one. This is just --
MR. KIMBERLIN: I'm trying to lay the ground work for
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what's happened, why these guys are involved.
THE COURT: But much of what you're talking about is
not in any way admissible into evidence.
MR. KIMBERLIN: Well, I'm going to say that. I'm
going to get this in evidence.
THE COURT: This is supposed to be a brief summary --
MR. KIMBERLIN: Okay. All right, I'll make it brief.
I'll make it brief.
THE COURT: This is -- I sustain the objection to you
talking about issues that have nothing to do with what you
allege these men did to you.
MR. OSTRONIC: Thank you, your honor.
END BENCH CONFERENCE
MR. KIMBERLIN: So eventually, Mr. Walker is
identified by me in a court file. Not as Aaron Worthing, but as
Aaron Walker. He came into court that day, followed me out of
the courtroom, one of these courtrooms, and assaulted me out in
the corridor.
MR. OSTRONIC: Your honor --
THE COURT: Sustained.
MR. KIMBERLIN: And so he took his jihad against
Mohammed off of Mohammed and against me. I, now -- the prophet
Mohammed's no longer the pedophile, I'm the pedophile. Why am I
a pedophile? Because I married my wife when she was 18 years
old.
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MR. OSTRONIC: Your honor, everything he's talking
about he should bring into evidence later on, or -- objection.
THE COURT: I'll sustain the objection to that.
MR. KIMBERLIN: Every single day --
THE COURT: Sir, you need to talk about what the
issues are in this case --
MR. KIMBERLIN: In this, so far --
THE COURT: -- and what you allege has been done to
you.
MR. KIMBERLIN: All right, all right. So my wife
couldn't take this. She snapped. Stress. She started acting
out, being suicidal, running off with guys --
MR. OSTRONIC: Your honor, again.
THE COURT: Sustained. Just objection would be
appropriate.
MR. OSTRONIC: I'm sorry. Thank you.
MR. KIMBERLIN: And so what do I do? I'm a loving
husband. I married my wife, she came from overseas, she's got
no family. What do I do? Do I run down to the court and
divorce her, kick her out on the street? She's the mother of my
two kids. No, I go back to her, last summer, and I say,
Please --
MR. OSTRONIC: Objection, your honor.
THE COURT: Sustained.
MR. KIMBERLIN: These guys followed her out of court.
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MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: They get her, coach her --
MR. OSTRONIC: Objection.
THE COURT: Sustained. Come here.
MR. KIMBERLIN: Your honor, this goes to the gist --
BEGIN BENCH CONFERENCE
THE COURT: Here's the problem, you have claimed that
you were defamed and shown in a false light, and you haven't
even talked about that.
MR. KIMBERLIN: I'm getting there right now.
THE COURT: You need to do that.
MR. KIMBERLIN: Okay.
THE COURT: I mean, if you're going to do that, but --
MR. KIMBERLIN: But the whole thing is that they
coached my wife to say something false --
THE COURT: Well, I understand that, but --
MR. KIMBERLIN: -- and --
THE COURT: -- none of that stuff is -- how are you
going to get that into evidence? That's not -- you're not going
to get that material into evidence.
MR. KIMBERLIN: Oh, I will. I mean --
THE COURT: It's -- you need to talk about what you
allege they did to you.
MR. KIMBERLIN: Okay.
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THE COURT: Apparently -- in your papers, you claim
that they were publishing --
MR. KIMBERLIN: Yeah.
THE COURT: -- material that wasn't true.
MR. KIMBERLIN: Right, okay.
MR. OSTRONIC: Thank you.
MR. AKBAR: Your honor, thank you.
THE COURT: One second.
MR. OSTRONIC: Can you just remind us, your honor,
that the conspiracy was thrown out, and all these other charges
that he's threatening us with?
THE COURT: Well, yeah. You can't talk about the
counts that were thrown out. Only that that's left in this
case, okay?
END BENCH CONFERENCE
MR. KIMBERLIN: So for the past year, my kids, my
family, my wife, have been subject to a jihad, every --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: I'm a pedophile. Mr. Walker published
this.
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: You asked me to show what they've
done, your honor.
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THE COURT: I didn't ask you to do it. I told you --
MR. KIMBERLIN: Okay.
THE COURT: -- what you should not be talking about.
MR. KIMBERLIN: Every day -- this case has to do with
defamation in false light. They portray me as a pedophile and a
murderer. A murderer, because this man committed suicide 40
years ago -- 35 years ago, and I had a wrongful death judgment
against me. Which is no longer about -- they call me a
pedophile, because I married my wife when she was a teenager.
And they didn't just say this based on some court document that
my wife filed when she was in a bipolar episode, they say it
every day. My wife wrote to them --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: It's coming into evidence.
THE COURT: Maybe, we'll see.
MR. KIMBERLIN: I told them, don't publish it, it's
not true.
MR. OSTRONIC: Objection.
MR. KIMBERLIN: It hurts my family.
THE COURT: Sustained.
MR. KIMBERLIN: So that's what this case is about.
You know, am I a father, a husband, a composer, an active member
of the community? Every day, out working with young people,
with senators, congressman, all these things. Is that me? Is
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that me, now? Or am I what these guys say, a pedophile and a
murderer? My daughter -- she's going to testify -- is 15 years
old. She's been bullied out of two schools, Montgomery County
schools, and she'll testify to this.
MR. OSTRONIC: Objection, your honor.
THE COURT: Sustained.
MR. KIMBERLIN: My daughter is a gifted --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: I'll let my daughter speak for
herself. So that's what it boils down to, defamation, false
light. What are these guys doing? How's it harm me and my
family? There's two types of defamation. There's defamation
where somebody just says, oh, that guy's no good, or that guy
did this, and then there's what they call per se defamation,
which is where a guy or a person or persons falsely accuse
someone of a crime, of something that they didn't do, that's so
bad, so heinous, that the harm is automatic. I don't have to
prove damages when it comes to per se defamation, at all. The
damages are presumed.
MR. OSTRONIC: Objection.
THE COURT: Sustained. This is an opening statement,
sir, you are arguing.
MR. KIMBERLIN: Okay. So, your job here is to decide
whether you want to believe these guys. This is Ali Akbar. Ali
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Akbar is a convicted felon.
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: Mr. Walker, the publisher of the
Mohammed hate blog.
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: Mr. McCain, right there, with the red
-- Southern Poverty Law Center defined him --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: And Mr. Hoge, an ordained minister.
So, that's my opening statement. And I ask you as jurors to
stop this, to send a message that this kind of conduct by people
is not acceptable in today's society. It's what's causing all
this grief. You know, yesterday, Robin Williams died because of
depression, he killed himself. I didn't want that to happen to
my wife.
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: I want this to stop. I want my kids
to be able to go to school without being bullied with this
garbage. I want my wife to feel like she's safe, that she
doesnt have to pick up -- go on the Internet and see these
terrible things.
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MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: And so I'm going to ask you, from the
bottom of my heart, to do what judges have been unable to do.
They've -- Mr. Walker and Mr. Hoge have filed --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: -- criminal charges against me.
THE COURT: Sustained.
MR. KIMBERLIN: It's got to stop, and it can stop with
you. We deserve, my family deserves it, my mother lives here
and deserves it, my kids deserve it, my wife deserves it.
Society deserves it, and we have to stop this, this hatred --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: -- these personal attacks --
THE COURT: Sustained.
MR. KIMBERLIN: Thank you.
THE COURT: Thank you. Deputy, you had somebody --
Mr. State, did Ms. Sandler go to another courtroom, or is --
UNIDENTIFIED FEMALE: Yeah, she had to check out in
9C, I mean, I can see -- I can go get her.
THE COURT: 9C, what is that?
UNIDENTIFIED FEMALE: Courtroom 9C -- oh, 6C, I'm
sorry. My bad.
THE COURT: I've been in this building for 15 years,
and the numbers are now changed to the rooms, I mean -- all
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right. So who's the judge?
UNIDENTIFIED FEMALE: I'm not sure.
THE COURT: Okay.
UNIDENTIFIED FEMALE: I can go get her, though, if you
need me to.
THE COURT: That's all right. Yeah, why don't you do
that? Counsel?
MR. OSTRONIC: Thank you, your honor. One last thing,
yesterday we said we were going to sequester the witnesses, so
if there's any witnesses in here, could we have them --
THE COURT: Well, that was up to you all, to make sure
that your witnesses were not in the courtroom.
MR. OSTRONIC: Okay, can I now ask them to leave?
THE COURT: Ladies and gentlemen, if you are a witness
in this case -- not a party. The parties can remain, obviously.
But if you're a witness, you must remain outside the courtroom.
Do not discuss your testimony among yourselves or with anyone
else, if you are going to be a witness or a potential witness.
All right.
MR. OSTRONIC: Thank you, your honor. May I approach?
THE COURT: Sure.
OPENING STATEMENT BY F. PATRICK OSTRONIC, ESQ.
ON BEHALF OF THE DEFENDANTS
MR. OSTRONIC: Good morning, ladies and gentlemen of
the jury, your honor, witnesses -- I mean spectators. An old
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observation says that if you want to make God laugh, you tell
him your plans. And as Judge Johnson alluded to yesterday, no
matter what your plans were, they would probably not include
being here today.
So why are you here? And why are you here today?
Plaintiff has already given you somewhat of his summary. You've
heard from him. But his summary doesn't give you the why, why
you're here. This is not the result of some amped-up
neighborhood feud. The defendants in this case have never had a
personal relationship with the plaintiff. In fact, the
defendants don't even live here in Montgomery County. Mr.
Walker, here, is up from Northern Virginia. Mr. Hoge, here, is
down from Carroll County. Mr. McCain, over here, is in from
West Virginia. Mr. Akbar, here, is in all the way from Texas.
We're talking major inconveniences here.
But they, like you, are here because Brett Kimberlin
was offended by some of the things they wrote, and that is what
this law affair is all about. Brett Kimberlin, this man here,
wants to shut these people down, wants to silence these
gentlemen from their speech. And he wants to do it because he
doesnt like some of what they're talking about, some of the
ways of how they portrayed him. They've offended him. They've
upset him. And plaintiff believes, for whatever reason, that
his bruised feelings somehow entitle him to government-enforced
remedy, and that, ladies and gentlemen, is why you're here,
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because Brett Kimberlin wants you to be his enforcer. He wants
you to bring him comfort and shut these gentlemen down.
The plaintiff uses the word they a lot. They did
this, they did that, they say this. But I don't want you to let
him muddy up your understanding of this case. You are sitting
as the jury on four lawsuits initiated by the plaintiff, all of
which have to be handled separately by the plaintiff. There is
no overlap between them. Each one stands on their own.
Now, my first profession out of college, long before
law school, was in the Navy. Back then, our focus was on the
Soviets, who at the time, it seemed, would be a permanent force
in all of our lives, until they weren't. That was a nice thing,
the world's a better place for that. Now, my work takes me
frequently to Eastern Europe, primarily Poland, but also places
like Bulgaria, Lithuania, and even Ukraine. 25 years ago, if I
had gone to any one of those places, I probably would have lost
my security clearance. Now, it's just the way I make a living.
I mention all of this because, of course, none of these places
would have changed had there not been people there who had the
courage to speak out about the evil they were living under.
Fortunately, there were those people who stepped forward.
However, here in America we should be long past the
time when speaking out is a matter of courage. Our First
Amendment does not give us free speech, we have that inherently.
Our First Amendment guarantees that our government will not take
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that freedom away from us, but the temptation to do so will
always be there, and there will always be players out there who
seek to take our freedoms for their comfort. And again, ladies
and gentlemen, that's why you're here, because Brett Kimberlin
is trying to enlist your help in just such an effort. Thank you
for your time.
THE COURT: All right. You'll make you statement in
just a minute. Ms. Sandler, is what's going to happen brief?
MS. SANDLER: I can determine that in a few minutes,
but I'd need to speak with the agent first.
THE COURT: Is that the agent you're speaking with?
Okay.
MS. SANDLER: I mean, I don't know. It would probably
take about 10 minutes.
THE COURT: Then it's not brief. What about the other
case? You're not in that.
MS. SANDLER: I'm not in that.
UNIDENTIFIED MALE: Mr. Gottlieb's in the other case,
your honor.
MS. SANDLER: Mr. Gottlieb's right outside of the
courtroom.
THE COURT: Well, tell him don't go away. We're going
to have him. You're going to do your opening --
MR. AKBAR: Yes, your honor.
THE COURT: -- and then we'll take a recess, and we'll
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dispose of both of those cases at that point, all right? Go
ahead.
MR. AKBAR: Your honor, can I go up?
THE COURT: Yes.
OPENING STATEMENT BY ALI AKBAR
PRO SE DEFENDANT
MR. AKBAR: Your honor, ladies and gentlemen of the
jury, a big howdy from Texas. My name is Ali Akbar, I'm the
president of the National Bloggers Club. I'm here because I
read these gentlemen's blogs and Mr. Kimberlin doesn't like it.
I've shared links on Twitter, and he doesn't like it. We're
here, very simply, because he doesn't like us. He begged for
you to stop this, and I pray that you do. The burden is on the
plaintiff, Mr. Kimberlin, and it's exceedingly high. He must
prove a couple of things, and he slightly alluded to it, but he
must prove that I said false things, wholly false things. He
must also prove that I knowingly said these false things, and on
top of that, he must prove that I did these things with an
intention to harm him. On top of that, if it wasn't high
enough, he must prove that there are actual damages.
Now, he's already alluded to his past, and I ask that
you consider that when you make your decision. Now, Mr.
Ostronic did reference, he'll use the word beg, but the
question you're going to have to ask yourself against every
defendant, but principally me, is what is he alleging that I did
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besides share articles that are written by other people? He has
provided you with no documentation to support the matters of law
required of him, and the smart money defense is to let his case
fall flat. We know that he can't prove these things as a matter
of law. Truthfully, he can't even prove these things as a
matter of rhetoric or persuasion. Mr. Kimberlin isn't suing me
for creating rumors or baselessly speculating about his past;
he's suing me as an intent to silence me. He's suing me for
daring to post links and support bloggers, which is my
constitutional right. When there is real harm, no matter the
individual or their past, they should find relief, but when an
individual fabricates claims, the harm and rights of the accused
are actually being violated.
Now I understand that Mr. Kimberlin isn't on trial for
any of his past crimes, any of his wrongdoing, or his present
evil behavior, but the First Amendment protects free speech, it
protects mean speech, it protects speech that many of us
wouldn't agree with. In fact, that's why we have a First
Amendment, to protect dissent against power. It certainly
protects me from sharing information, from police reports, his
authorized biography, and people who know the plaintiff best,
like his wife. I know this, and it also protects truth. That's
why I'm self-representing today, because it would have been easy
to just let this case fall, but I thought that that would have
been a wasted opportunity to speak the truth about Brett
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Kimberlin and his past. I want this jury to affirm the First
Amendment. I want it to be said that true things can be said
about bad people. Mr. Ostronic is a very competent counsel. He
has a winning defense, but I needed to stand before you today to
say that I'm a good man, and that I want to be able to say true
things as the head of the National Bloggers Club, and that
bloggers can't be silenced by Mr. Kimberlin. This is a 30-year
campaign he has on silencing journalists, bloggers, witnesses
who have testified, and he has been. I beg that you take this
call and stop this now. Thank you.
THE COURT: Thank you. Mr. State, was Ms. Sandler
talking with the agent?
UNIDENTIFIED MALE: Yes, your honor.
THE COURT: All right. See if -- because if we start
with a witness, it will be a long wait, so tell her that --
UNIDENTIFIED MALE: Understandable.
THE COURT: Speak now or forever hold her peace.
UNIDENTIFIED MALE: Thank you.
THE COURT: Ladies and gentlemen, just as soon as we
return we can dispose of two very brief matters. If we can,
I'll give you a break, and then you'll come back and we'll start
with the witnesses. If we can't, we'll start right now, and
they will just have to wait. Okay. All right, Mr. Foreman,
members of the jury, you can take a break for 10, 15 minutes.
If you want to go down -- well, you can't go downstairs unless
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you go outside to get to the cafeteria, but if you want to do
that. There's also -- no, I wouldn't recommend machines. Okay.
But let's -- you can take a 15-minute break and then we'll come
back and we'll start with the witnesses. Counsel, could you
approach, please? Please remember, don't talk about the case
among yourselves or with anyone else.
BEGIN BENCH CONFERENCE
THE COURT: Who is your first witness?
MR. KIMBERLIN: My daughter.
THE COURT: Now, what -- what is her -- what's the
purpose of calling her?
MR. KIMBERLIN: She's going to testify --
THE COURT: You are the plaintiff in this case, she's
not a party.
MR. KIMBERLIN: No, she's not a party, but she's going
to testify about things that have occurred to us, things that
have occurred to her and the harm that's occurred to her about -
-
THE COURT: In terms of --
MR. KIMBERLIN: -- and she's going to talk about --
THE COURT: In terms of what? I mean, that has
occurred to her? I mean --
MR. KIMBERLIN: She's going to talk about my wife and
she's going to talk about the fact that I'm not a pedophile,
that I don't -- I mean, she needs to testify. She needs to talk
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about the harm. She's been bullied out of two schools because
of the things these guys have said.
MR. OSTRONIC: Unless there's a direct connection, I
mean, it's --
THE COURT: How are you going to prove that, though?
MR. KIMBERLIN: Well, I'm going to put her on the
stand and let her testify about the things that have happened at
school because of the things that are online.
THE COURT: You mean, things that have been said to
her?
MR. KIMBERLIN: Things that have been said to her,
things that have been done to her, things that --
THE COURT: That's total hearsay. How is it
admissible under the rules of evidence?
MR. KIMBERLIN: Well, it's not hearsay if what
happened to her as a result of it occurred.
THE COURT: Look, if it's an out-of-court statement,
and obviously, these were statements that were made out of
court, things people said to her -- deputy, you can bring
somebody out. I don't care who.
MR. KIMBERLIN: I'm not going to ask her -- your
honor, I'm not going to ask her what other people said. I'm
going to ask her what she said and what happened to her, and I'm
going to ask her about my wife, and I'm going to ask her about -
-
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THE COURT: But what is the segue? How does it
connect to these defendants? See, you're going to have to prove
what each one of these individuals did, and what is she going to
testify that any one of these men did to her?
MR. KIMBERLIN: Well, that they posted stuff --
THE COURT: You can't say they.
MR. KIMBERLIN: Okay, that -- and I will get to that.
I'm going to call each one of these defendants as a witness, and
I'm going to show that -- I mean, I would like to get my
daughter done first, you know. If they want me to put them on
the stand first, then --
THE COURT: Well --
MR. KIMBERLIN: -- and show that they've called me a
pedophile, and that's been on the Internet, all over the
Internet, every single day for years --
THE COURT: Well, that's up to you, I mean --
MR. KIMBERLIN: But I would rather put her on the
stand --
THE COURT: But I'm concerned about a 15-year-old
child.
MR. KIMBERLIN: Well, she has been through this. She
has lived it.
THE COURT: But what I'm saying, what is she going to
say that -- I'll just use Mr. Akbar. What is she going to say
he did?
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MR. KIMBERLIN: She may not say anything that he did,
other than that he posted tweets on the Internet that I'm a
pedophile.
THE COURT: How can she testify to that?
MR. KIMBERLIN: Well, I'm not saying that she's going
to testify to it. I'll say she will testify that she was
bullied out of two schools in Montgomery County --
THE COURT: Because of him?
MR. KIMBERLIN: -- because of these guys.
THE COURT: Because of him?
MR. KIMBERLIN: I'm not saying because of him, but
because of what they said on the Internet, and --
THE COURT: The conspiracy count is gone, so you won't
be able to use they.
MR. KIMBERLIN: Then I won't say they. I will say,
you know, they defendants, they called me a pedophile on the
Internet, that this was used and read -- I have to show that
this was publicly put out there --
THE COURT: You do, but I don't know how you're going
to do it through your daughter.
MR. KIMBERLIN: Well, I'm not going to do it through
my daughter. It's just that I'm putting her on the stand first.
I'm going to do it through them. I'm going to show that they
did this --
THE COURT: Maybe you should call them, because what
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I'm hearing is, I don't know what it is she can -- you need to
say -- there's four defendants left, you need to show what each
one of them did, not they.
MR. KIMBERLIN: All right. But can --
THE COURT: You're going to have to connect the
conduct to each individual man.
MR. KIMBERLIN: I understand, and that's why I'm just
trying to lay the foundation first, and then let her go and --
THE COURT: But you're going to have to do it through
admissible testimony. I mean --
MR. KIMBERLIN: Okay, I will.
THE COURT: -- she can't just get up there and testify
about what was going on in the family or any of that. Because,
first of all, how do you connect that to -- it's like saying,
you sat next to somebody and they had a cold, and you caught a
cold. You can't -- there's no segue there.
MR. KIMBERLIN: Well, because they're the only ones
that were on the Internet -- I mean, not they. These defendants
were on the Internet promoting this false meme, this false
narrative of pedophilia. I mean, defamatory.
THE COURT: Well, my question still is: How does your
daughter testify to that?
MR. KIMBERLIN: Well, she testifies to what happened
to her because of this. I have to prove some harm and show some
harm.
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THE COURT: What's the segue? How can you prove that
what happened to her is a direct result of -- I'm using this
gentleman because he had the -- how do you prove that?
MR. KIMBERLIN: Well, if she was bullied out of two
schools, if she suffered out of two schools because of people
going on the Internet and reading the fact that I'm a pedophile,
then that's harm. That is absolute harm, and I need to show
that.
THE COURT: Well --
MR. OSTRONIC: Your honor, I'll also point out that
theres two other defendants in this case which also he's
alleging the same thing against, so they're not part of this
whole thing, either.
THE COURT: You're going to have to connect the
testimony to a particular defendant, not just broad
generalities, okay?
END BENCH CONFERENCE
(Recording paused.)
(Recording resumed.)
THE COURT: Thank you. Have a seat. All right.
We're back on the record, and Mr. Kimberlin, your first witness.
MR. KIMBERLIN: Yes. I'm going to call Kelsie
Kimberlin.
MR. OSTRONIC: Your honor, I will object.
BEGIN BENCH CONFERENCE
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THE COURT: She's not a party in this case --
MR. KIMBERLIN: Kelsie?
THE COURT: Yeah.
MR. KIMBERLIN: Not a party?
THE COURT: What's her testimony? Is that that little
girl --
MR. KIMBERLIN: Not that little girl there, but
another girl. Your honor --
THE COURT: She's not a party in this case.
MR. KIMBERLIN: She's not a party. She's a witness.
THE COURT: To what that they did?
MR. KIMBERLIN: That they harmed me and my family, and
she said -- and -- you know, I ask you to give me a chance to
make that --
THE COURT: But she can't testify -- her school, or
all that's not relevant --
MR. KIMBERLIN: She can testify that I'm not a
pedophile. She can testify that --
THE COURT: How can -- she can testify that you never
did anything to her.
MR. KIMBERLIN: Or anyone she knows.
THE COURT: Or anyone that she knows --
MR. KIMBERLIN: Or that --
MR. OSTRONIC: I will stipulate that he never did
anything to her. We'll stipulate to that.
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MR. KIMBERLIN: No. I want the -- harm. There's
harm. These people need -- this jury needs to know the harm
this has caused my family. It's not just --
THE COURT: Wait a minute. Hold on a second --
MR. KIMBERLIN: -- I have a right to put on evidence
of harm.
THE COURT: We're on the same page. No one is
objecting to what the jury has a right to know in terms of harm.
The objection is the manner in which you are setting out to do
that. If these individuals said that you're a pedophile, the
best person to testify about that is you. To put your 15-year-
old daughter --
MR. KIMBERLIN: My --
THE COURT: -- talk about harm. Put a 15-year-old kid
in a courtroom in front of a jury and ask her questions about
pedophilia?
MR. KIMBERLIN: Your honor, my daughter has suffered
immensely at these, and --
THE COURT: No one's doubting that. But you've got to
understand something. You are the party in this case. Not your
daughter. She's not a party here.
MR. KIMBERLIN: I understand. But I need to put on --
and I need to put this information out, and I ask you to let me
put this information out. She was listed as a witness --
THE COURT: The problem is, what did she witness?
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MR. KIMBERLIN: Well, she witnessed the bipolar and
depressive activity in my wife --
THE COURT: A 15-year-old is not competent to testify
about any bipolar --
MR. KIMBERLIN: Well, no, she can testify --
THE COURT: -- that's subject to an expert witness.
MR. KIMBERLIN: -- well, but she can testify about
what she saw my wife do, and how she saw my wife act.
THE COURT: And how can she connect that behavior of
your wife to one of these gentlemen? How?
MR. KIMBERLIN: Because --
THE COURT: Evidentiary wise?
MR. KIMBERLIN: Okay, because these guys, their whole
thing is that my wife --
THE COURT: I understand them --
MR. KIMBERLIN: -- that my wife filed some document in
a court, in this courtroom, and -- that made some allegations
that were false, and that they are just reporting those
allegations. That's their --
THE COURT: No one's disputing that. But what can
your daughter witness? What is she witness?
MR. KIMBERLIN: She can say that my wife is bipolar
and depressive --
THE COURT: No. She can't.
MR. KIMBERLIN: Well, she can say that my wife has
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fits of depression --
THE COURT: She can't. She's not competent to testify
to that.
MR. KIMBERLIN: -- and that my wife -- she can testify
that my wife tried to commit suicide in front of her. She can
say these kind of things --
THE COURT: Okay. Assume all you want to know. The
little girl gets up here and says, My mom tried to commit
suicide. Okay. What is that -- how is that relevant to
anything he did?
MR. KIMBERLIN: Okay, because these defendants took
advantage of my wife, followed her out of the courtroom, at
least some of them, followed her out of the courtroom, and got
her to file some bogus charge against me that was investigated
by everybody, and found to be bogus --
THE COURT: Assume all of that is true. What does
this 15-year-old have to do with that?
MR. KIMBERLIN: Because she was harmed. She's been
harmed -- she's been brought out of two schools, and --
THE COURT: She's not a party.
MR. KIMBERLIN: And they have defamed her --
THE COURT: She's not a party.
MR. KIMBERLIN: I know. But they have gone on her --
she's a very accomplished musician. They have gone on her
websites, they have attacked reporters --
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THE COURT: I don't disagree with any of that. But
she's not a party.
MR. KIMBERLIN: It's not that she's a party. They are
using the pedophilia against me, against her, and they're doing
it to harm me.
THE COURT: Sir, but you've got to understand
something. We have rules here. You can't just bring people in
to just testify when they -- A, they didn't witness anything
that they're competent to testify about, and B, she is not a
party to this lawsuit, so even if they did harm her as it were -
-
MR. KIMBERLIN: I have a right to put on the fact that
I'm a father, that I'm a good father. They have --
THE COURT: You can get up there and put that on.
MR. KIMBERLIN: Well, I may not testify, your honor.
I don't have to testify --
THE COURT: Well, that's up to you.
MR. KIMBERLIN: -- you know, but I have a right --
THE COURT: But, see, what I'm trying to avoid is
having this little girl come up here, objection sustained,
objection sustained, objection sustained, and then having --
putting her through that, and having nothing really come of it.
She can testify to --
MR. KIMBERLIN: I can ask her if I'm a good father. I
can ask her if --
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MR. OSTRONIC: Your honor, can I -- can you hear my
objection first --
THE COURT: Sure.
MR. OSTRONIC: -- to why I -- first of all, plaintiff
did not have her outside the courtroom during opening statement,
when he should have --
THE COURT: She was in the courtroom --
MR. KIMBERLIN: Well, but that exclusionary rule was
not invoked by him before that.
MR. OSTRONIC: It was invoked --
THE COURT: They did yesterday.
MR. OSTRONIC: We did yesterday in the courtroom
stage.
THE COURT: Yeah.
MR. OSTRONIC: And the second reason, your honor, is
he did not identify her as a witness with potential pertinent
information as required by interrogatory number one.
MR. KIMBERLIN: Your honor, interrogatory number one,
which I have right here, doesn't even ask for a list of
witnesses.
THE COURT: Well, we don't -- I don't even reach that.
I mean, I reach -- I don't know what you're going to ask her,
but I'm telling you, you're risking putting this little girl,
your daughter, on the witness stand, and having her testimony
not being admitted, because what you're telling the court that
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she's going to testify to, she's not competent to testify to
from a legal point of view. A lay witness can't come in here,
and I don't care if she was 35 years old. She couldn't come in
here and say somebody suffers from bipolar. She couldn't come
in here and say somebody suffers from depression. She couldn't
come in here and say that My mom did certain things.
Therefore, it is because of what the defendants did. Even an
adult can't do that.
MR. KIMBERLIN: She certainly has a right to testify
about my character, and my character as a father --
THE COURT: Your character isn't at issue. If your
character --
MR. KIMBERLIN: Well, it's -- my reputation is at
issue.
THE COURT: Well, but -- you don't get to put on the
character evidence first before you take the stand and put your
character at issue.
MR. KIMBERLIN: But --
THE COURT: That's just a rule of evidence.
MR. KIMBERLIN: -- I think that's the whole -- but
that's the whole thing. They're saying that I have -- that --
you know -- I'm saying that they've damaged my reputation --
THE COURT: So you're locked in on your argument, and
you seem to think that the court is against you. The court is
not. The court is just making sure everybody plays by the
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rules. Character -- if you were allowed to do what you want to
do, a defendant in any case, or plaintiff, could come into
court, not testify, not do anything, and just put character
evidence up there. That is expressly prohibited by the rules of
evidence. You have to put your character at issue. Now if you
testify, then, of course --
MR. KIMBERLIN: Then, you know, let me put her on the
stand, and I'll get a very small --
THE COURT: Not if you're going to ask her about your
character as a father. You can do that, but you're -- right
now, this jury hasn't heard a thing from you that's evidence.
All of that that both parties did at the beginning, that's not
evidence. That's just opening statement. Now, if you put your
character at issue and you want to put on a witness to say He's
a good father. He's this or -- fine. But you don't get to do
that first. That's just the rules of evidence. Otherwise, a
party could come into court, just bring in a bunch of character
witnesses, and then rest. That's the reason for that rule. So
I'm not telling you she can't testify. I'm telling you she
can't testify in that order.
MR. KIMBERLIN: All right. Well, then, I'll go tell
her that she's got to wait.
THE COURT: You don't have to tell her anything.
She's waiting --
MR. KIMBERLIN: No, but I owe it as a father so she
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doesn't sit out there and think that she's -- you know -- I just
need to go tell her that it's going to be a while.
THE COURT: Okay.
MR. KIMBERLIN: All right.
MR. OSTRONIC: Thank your honor. Your honor, is the
objection overruled, then, for her coming in, or is -- can I
wait until later on --
THE COURT: Wait for it.
MR. OSTRONIC: Okay.
END BENCH CONFERENCE
MR. KIMBERLIN: I'd like to call Aaron Walker.
UNIDENTIFIED MALE: Aaron.
UNIDENTIFIED MALE: Yes, sir.
THE CLERK: Please raise your right hand.
AARON WALKER
called as a witness on behalf of the plaintiff, having been
first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. KIMBERLIN
Q State your name, please.
A My name is Aaron Justin Walker.
Q And what is your occupation?
A I am currently unemployed, but I am an attorney.
Q And where were you employed previously?
A Where was I?
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Q What was your last -- previous employment?
A It was a company called Professional Healthcare
Management Inc.
Q What did you do at that --
A I was corporate counsel.
Q You were corporate counsel. Now, did you have a hobby
on the side, or have a vocation on the side -- publisher of any
kind of blog?
A Yes.
Q Okay. Could you tell us the name of that blog?
A I had two.
Q Okay. Could you tell us about those?
A Okay. The first is Allergic to Bull.
THE COURT: Is that Allergic to --
MR. WALKER: Bull. Like, the animal.
BY MR. KIMBERLIN
A And the second is called Everyone Draw Muhammad.
And I should note, to amend that answer, that also, I did
briefly guest blog on a website called Patterico's
Pontifications.
Q So, as publisher of the Muhammad blog, what name did
you use in that capacity?
A I went under a pseudonym, Aaron Worthing.
Q That was a twitter account under any name?
A Yes. Aaron Worthing.
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Q So that Muhammad blog, and that both use the name
Aaron Worthing. Now, are you familiar with a man named Seth
Allen [phonetic sp]?
A Yes.
Q In August, roughly, of 2011, did Seth Allen send you
an email?
A He sent me several.
Q Did he send you a specific email regarding possibly
murdering me?
A Yes.
Q And there were several other people involved with that
email, and that email thread, where you CCd, or Bccd, or
whatever. Do you know, if you have any personal knowledge, did
any of those people contact the police, and tell them that
there's a possible murder against me --
A Well, it would be hearsay information --
Q Okay --
A -- but upon the information in belief, Mandy Mackey
[phonetic sp] did contact the police. She informed me she was
going to do, and then she informed me after she had done so.
Q And are you familiar that I had a lawsuit against Mr.
Allen --
A Yes.
Q -- pending at that time for defamation?
A Yes.
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Q And are you familiar that once a judgment was reached
in that case in November, 2011, did you take any action on
behalf of Mr. Allen?
A Action.
Q Did you get involved with that case in any way, shape,
or form?
A I provided him legal advice on how to deal with your
lawsuit.
Q Okay. So -- I'm not trying to get into attorney
client privilege, but did you do that using the name Aaron
Walker, or Aaron Worthing?
A Both.
Q Okay. Now, at some point, I became aware that
somebody named Aaron Worthing was involved with that lawsuit,
and was filing in post -- or helping him file some post --
MR. OSTRONIC: Objection. Plaintiff --
THE COURT: Sustained. You're leading the witness --
MR. KIMBERLIN: Okay.
BY MR. KIMBERLIN
Q At some point in the -- following that judgment, did
you attend a hearing on January 9, 2012, in this courthouse?
A Yes.
Q And at that time, did you attend that hearing for any
particular reason?
A I needed to put -- seal some information on the
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record. You had decided to file a -- you had filed a motion --
a subpoena against me that was abusive. You were trying to get
me to testify against my client. And then when it became clear,
when you learned what my true identity was, then you put a
motion to withdraw on the record. That motion to withdraw
included my real name, and the alias I went under online. It
included my date of birth, my current home address. It included
where I worked. It included their address. It included what
college I went to. It included what law school I went to. It
included sealed information from a lawsuit I had filed. It
included all this information unnecessarily.
And this was one day after you had sent a letter to
the police saying that your act of placing that information into
the perfect record would put my life in danger. So I came to
court to put that information under seal.
Q you came to court to put it under seal. Now, I know
you stated just a second ago that I put your life in danger --
A -- your words --
MR. OSTRONIC: Objection. Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Or whatever. When you blog on Everyone Draw Muhammad,
did you make any statements about who you were with regard to
your name, real you live, things like that?
A Yes.
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Q Can you -- did you tell people on that blog something
that -- I'm paraphrasing. Come get me, bitches. I'm Aaron
Worthing from Manassas, Virginia. If you're going to behead
somebody, behead me. Did you say something like that?
A Yes. I did that specifically so they would chase a
ghost.
Q So --
A So that if there was any danger, and I believe there
was none, that they would go after nobody.
Q Okay. But these 800 vile depictions of the prophet
Muhammad --
MR. OSTRONIC: Your honor, please. Is this going
anywhere?
THE COURT: Sustained. That's a leading question,
sir. Don't ask leading questions.
BY MR. KIMBERLIN
Q Did you ask other people to post these pictures under
their own names?
MR. OSTRONIC: Your honor, can he be more specific on
this one? I --
THE COURT: Yes.
BY MR. KIMBERLIN
Q When you, as a publisher of the Everyone Draw Muhammad
blog, did you ask people that were submitting these depictions
to publish them under their own name?
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A Basically -- you have to understand what this was
about in context. We had seen a decades-old campaign of people
-- I call them Islamofascists, who do not believe in freedom of
speech. They threatened, for example, Salman Rushdie for having
-- [unintelligible] -- they threatened Salman Rushdie for having
published a book critical of Muhammad. They -- someone killed
Theo Van Gogh, because he made a movie critical of how he saw
this Islamic culture treating women. And then we can turn on --
and the TV show South Park was getting death threats if they
dared to show Muhammad in the most benign, the most inoffensive
manner, because according to their religion, you absolutely
cannot show Muhammad. Under any circumstances. At least under
some interpretations.
And so, we said, Look. That's your religion. That's
not my religion. We have a right to do and say what we want.
And so a lot of people in sort of a similar situation to the
movie Spartacus, where they all stood up and said, I am
Spartacus, they went in there, and said, I want to put myself
on the line, to put myself in harm's way in order to give them
too many targets to look at, to make it impossible for them to
hurt one person because they got to hurt 100,000 people. And
so me, and over 100,000 other people participated in this
protest called the Everyone Draw Muhammad Day protest. Now, I
only had 800 people, but 100,000 people participated. And as a
result, nobody has been killed. What the terrorists have
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realized -- there's too many people. They can't kill them all.
And so what I was urging people to do is to make it clear that
they were standing up with the most openness as possible. And -
- now, ideally, I wanted to put my name on there, too. I really
did. But I'm a married man, and I have to make these kinds of
decisions together. And my wife, we discussed this, and she was
too afraid. There's no two ways about it. And so, I -- you
know, I said, Okay. I can't ask other people -- so I told a
white lie, if you will. And I even apologized to my readers
later about that. But the idea was to try to get something
going to protect freedom of speech.
Q So, on this blog post that you put up on that blog,
you said, and I'll ask you to look at this -- I will insult
your prophet on a regular basis, and I will continue to do so
until this sort of thing stops. Getting a violent response.
So that's your justification, is you insult the prophet Muhammad
until --
A Well, I'd like to see what you're relying on.
Q Okay.
THE COURT: You've already had that marked.
MR. OSTRONIC: Your honor, can I look at it first?
THE COURT: Sure.
MR. OSTRONIC: Look at it first. And will prove this
was admitted in discovery?
MR. KIMBERLIN: Yes.
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MR. OSTRONIC: Okay. If he can -- it's not
authenticated or anything, so --
THE COURT: Well, they're not there yet.
MR. OSTRONIC: Right.
BY MR. KIMBERLIN
Q Okay. I'm going to hand you Exhibit No. 7,
Plaintiff's Exhibit No. 1, and could you highlight in yellow for
us --
THE COURT: You need to identify that, sir.
MR. WALKER: Do I need to say -- oh, sorry.
THE COURT: Can you identify that exhibit?
MR. WALKER: Oh, authenticate. Let me read it over a
second, here. I believe it is authentic, sir.
THE COURT: And it is what?
MR. WALKER: It is a post I wrote introducing two more
authors to the blog, who was going to keep going, and basically,
I'm doing my best to try to suggest to people that rather than
hurt these nice people, that they go chase after that ghost, if
you will.
THE COURT: All right.
MR. KIMBERLIN: All right. Now, in another --
MR. WALKER: Do I need to hand this to --
BY MR. KIMBERLIN
Q In another post, you stated that --
THE COURT: Hold on a second. Is this going to be a
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question?
MR. KIMBERLIN: Yes.
THE COURT: It can't be leading.
MR. KIMBERLIN: Okay. I'm going to read you -- can I
read from it, and then -- I'm going to hand you this -- what's
going to be marked as Plaintiff's Exhibit --
MR. OSTRONIC: Goes to counsel, please.
MR. KIMBERLIN: -- Number 2.
MR. OSTRONIC: This still part of the Muhammad thing?
MR. KIMBERLIN: Yes. And I'd ask you to read the
lower portion --
THE COURT: First, can he identify it?
MR. KIMBERLIN: First, can you identify that?
THE COURT: They make it look easy on TV.
MR. WALKER: Well, whatever it is, it's only a chunk
of something written, here.
MR. KIMBERLIN: Right. What I --
MR. WALKER: So I don't have the entire context, here.
MR. KIMBERLIN: I'm just asking you if you can
identify that.
MR. WALKER: Well, let's see here.
MR. OSTRONIC: Your honor, I think he just identify
that it was a chunk of something out of a larger context, there.
MR. WALKER: Maybe --
MR. KIMBERLIN: I'm just asking you to read that
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portion in yellow --
MR. OSTRONIC: But your honor, if it's not --
THE COURT: Hold on a second, counsel. Just object
again --
MR. OSTRONIC: Sorry.
THE COURT: This witness hasn't identified, because he
said it's just a portion of something he's familiar with.
BY MR. KIMBERLIN
Q Mr. Walker, do you recognize that as part of the
Everyone Draw Muhammad blog?
A It strikes me, looks, appears to be a part of a
mission statement, but I, you know, it's only a part of it.
Q Okay --
THE COURT: What is this relevant to --
MR. KIMBERLIN: Well --
THE COURT: -- when you talk about Muhammad.
MR. KIMBERLIN: Your honor, I'm trying to get to a
point.
THE COURT: Okay. You can go directly to it --
MR. WALKER: Well, I mean, let me --
THE COURT: Hold on a second. You can go directly to
the point that you're trying to get to.
BY MR. KIMBERLIN
Q MR. Walker, is it true that you wanted to insult the
prophet Muhammad for --
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MR. OSTRONIC: Objection, your honor.
THE COURT: I'll sustain that. The prophet Muhammad
is not in this case.
MR. KIMBERLIN: Oh. Okay.
BY MR. KIMBERLIN
Q So, were you concerned with your safety, and that's
why you used a pseudonym?
A Actually, no. It was mostly because it was a marital
decision. I mean, there's no way I can place myself in danger
without placing my wife in danger as well, typically. Every
danger I face from a terrorist --
Q So you --
A -- is a danger to both of us, and therefore, it had to
be a family decision.
Q So, when you came into court after I identified you in
that Seth Allen case, you wanted to get that information sealed,
right?
A That is correct. I wanted you not to put out my home
address, my work address, where I worked, and so forth. And you
yourself acknowledged in the letter to the -- when you wrote to
the police that you were placing my life in danger. Needlessly.
You didn't call me as a witness that day. You were dropping
your subpoena. And then you didn't drop your subpoena just by
dropping it. No. You had to put information into the record
needlessly.
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Q Okay. So, at court that day, after the hearing --
MR. OSTRONIC: Your honor, can I ask what --
THE COURT: Were you objection?
MR. OSTRONIC: I'm objecting. Yes, sir.
THE COURT: Sustained. What's the relevance of this
to the plaintiff in this case? To you, Mr. Kimberlin? You're
talking about what he did to other people, but you're the
plaintiff here.
BY MR. KIMBERLIN
Q After that hearing, did something happen outside the
courtroom?
A Yes.
Q Can you tell the members of the jury what that was?
A Well, basically, you have to put in a little context,
and so far, nobody's explained to this jury who you really are.
MR. KIMBERLIN: Your honor, I object. I'm asking him
a simple question of what happened outside the courtroom. In
this courthouse, outside the courtroom. Did something happen --
THE COURT: He can answer that --
MR. WALKER: Well, I'll say in general that you are a
violent --
THE COURT: And you'll get to testify later if you
choose to do so, sir.
MR. WALKER: Okay.
BY MR. KIMBERLIN
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A I'll say in general that I know that you have an
extremely violent history, and that, indeed, a man lost his life
because of you, as a direct result of your behavior. And that's
not just my opinion. That's the opinion of the Supreme Court of
Indiana.
MR. KIMBERLIN: Objection.
MR. WALKER: But that being said --
THE COURT: [unintelligible] go ahead.
BY MR. KIMBERLIN
A As I left the courtroom, you -- we had some words, you
had tried to again -- you said to me, Mr. Walker, I recommend
that you leave me alone. And I said, I am going to continue
to tell the truth about you. And then, as we kept walking, I
was saying, Why didn't you call me as a witness today? If you
so needed my testimony, why didn't you call me as a witness?
And then, at some point, you lift your iPad as if to do
something with it, and I had a split second to think. I was
concerned. I knew you were the speedway bomber. And I said,
I'm not going to find out what this device is about to do.
So I took it from you briefly, peacefully. I did not
touch your body. I did not touch you with it. I did no harm to
you. I simply removed the iPad from your hands. And I think I
took you by surprise so much that it just came out like it was
barely gripped at all. And I kept it away from you until the
courthouse security could come up there and straighten the whole
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situation out. You have -- anyway, I won't go further than
that.
Q So you took the iPad, and you testified in other
proceedings that you thought this iPad that was brought into
this courthouse was a bomb?
A It was one of the possibilities I had -- I mean,
again, it was a split-second decision. I had to decide quickly,
Do I trust Brett Kimberlin not to be violent with me?
Q So the deputies came up and retrieved the iPad from
you, and gave it back to me. Do you know if they made a report
of that incident?
A I believe they did.
Q Have you seen the report on that incident?
A Yes, Ive read a report.
Q Okay. Your honor, may I --
MR. OSTRONIC: Im going to object. Its not the
complete report. I would -- its just part of the report, you
can see that.
THE COURT: Ill sustain it.
BY MR. KIMBERLIN
Q -- so --
MR. OSTRONIC: Your honor --
THE COURT: What?
MR. OSTRONIC: -- objection on -- its not a complete
--
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THE COURT: Well, he hasnt offered.
MR. OSTRONIC: -- okay. Sorry.
BY MR. KIMBERLIN
Q -- this is a public document from the police
department.
THE COURT: Well, can he identify? If he cant --
MR. KIMBERLIN: Thats easy. Hes seen it before. I
just -- have you seen that before?
MR. WALKER: All right. I dont recognize it.
BY MR. KIMBERLIN
Q So --
UNIDENTIFIED MALE: Make sure you get all this in,
sir.
Q -- did you ever learn that I went to the hospital
after that?
A Ive heard you claim you go -- went to the hospital.
Q Have you ever seen the medical reports that have been
submitted in other --
A Yes, and, in fact, they have not been consistent.
MR. OSTRONIC: Im going to object to the offering on
that.
THE COURT: Okay. Well, its not been offered.
MR. OSTRONIC: Okay. But --
BY MR. KIMBERLIN
Q -- have you seen that one?
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A -- no.
Q So, have you -- have you seen these before -- my
exhibit?
THE COURT: Whats the number of that exhibit, sir?
MR. KIMBERLIN: Exhibit 4 and 5.
BY MR. KIMBERLIN
A I do not recognize it. No, I dont believe -- I dont
-- I honestly dont recognize it. I mean, I have seen several
things. And the problem is is that I have seen inconsistent
reports that you --
Q Okay.
A -- reported to be from the hospital.
Q So, have you testified --
MR. OSTRONIC: Your honor, also to me bull that hes
got exhibits in mote.
THE COURT: Yes, the clerk will take the exhibits in
remote.
MR. OSTRONIC: Okay. But my point is, the medical
records, are they entered or not entered?
THE COURT: They werent offered.
MR. OSTRONIC: Okay.
MR. KIMBERLIN: -- yes.
Mr. OSTRONIC: All right.
BY MR. KIMBERLIN
Q So, have you made statements on your blog, on twitter,
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or another context that I forged those medical records?
A Ive said that I did not do any harm to you. So
necessarily those -- any records that exist do not accurately
reflect what happened. You, for example, have presented in this
case, in discovery a set of medical records that claim that you
did not have any back injury. You complained of pain, but no
back injury. On February 8, 2012, you submitted records to the
court --
MR. KIMBERLIN: Your honor, I object.
MR. WALKER: -- in a hearing --
MR. KIMBERLIN: Im asking him a simple question, has
he stated that I forged these medical records on any medical
records with regards with to that incident.
MR. WALKER: -- I have stated that --
THE COURT: Well, he has that.
MR. WALKER: -- I, and what I was about to say is, on
February 8th, 2012, you submitted a peace order against me, a
set of medical records that claim that you had a cracked
vertebra. Very specifically, I even referred to it in
subsequent documents. He claimed I cracked his vertebra. And
suddenly, you produce these new documents that dont mention the
cracked vertebra. You have a history of forging documents, Mr.
Kimberlin.
MR. KIMBERLIN: Your honor, I object.
THE COURT: Sustained.
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MR. KIMBERLIN: I object.
THE COURT: Next question.
BY MR. KIMBERLIN
Q Did you say that -- did you ever say on your blog or
elsewhere that I probably had myself beat up, so that I could
frame you for a crime?
A I had simply pointed out that I since I didnt beat
you up. If you actually had injuries, theres only one way you
could have gotten it.
Q Yes, and you --
A And I dont -- and I also most often said you probably
just faked the whole incident.
Q -- thank you. Okay. And have you -- have you seen
the photographs on the courthouse security -- on the overhead?
A Ive seen the video in motion --
Q Yes.
A -- showing that I did none of what you said.
Q Okay. Im going to -- Im going to hand you this
exhibit, and ask you to explain that to the jury, please?
THE COURT: Well --
MR. WALKER: Well --
THE COURT: -- first can he identify these things?
BY MR. KIMBERLIN
Q Yes, can you identify them?
A It appears to be a few selected stills from a full
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motion by connect video that was given to both of us in
discovery, given to you, weirdly before they gave it to me, the
defendant. And, yes, it appears to be the moment where I took
the IPad from you.
Q Okay. Can you look at the next picture?
A Thisll be when the sheriffs deputies were talking to
me about the incident.
Q Okay. And the next one?
A This would be when you were trying to retrieve the
IPad from me, and Im holding it over my head.
Q Okay. All right. Now once that occurred, you were
working -- at that time you were working at your job as legal
counsel with a health care provider. And, I believe, on -- not
sure, but looks like January 9th, roughly, you wrote -- you
wrote a letter to your supervisor -- to your boss -- your
employer about this incident and about your --
MR. OSTRONIC: Objection.
THE COURT: Sustained. You have to ask your question
soon. You cant lead the witness.
MR. KIMBERLIN: Okay.
MR. OSTRONIC: Your honor, what is he trying to ask
here? Hes got more than one document in there. Its not all
the same document. I dont know what hes trying to enter.
THE COURT: Its sealed. Is that Exhibit No. 7?
MR. KIMBERLIN: Yes, it is, your honor. This is that
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--
THE COURT: Well, the witness has to identify the
document. If the witness cant identify it --
MR. KIMBERLIN: Can you identify --
THE COURT: -- then it draws burden.
BY MR. KIMBERLIN
Q -- and then identify the subsequent emails to their
captions, please?
A Yes. Well, this would be a sealed document that I
turned over in the Virginia case to you.
MR. KIMBERLIN: Objection, then, your honor.
THE COURT: Whats the grounds, Mr. Kimberlin?
Something in Virginia?
MR. KIMBERLIN: No.
THE COURT: Well, youre not offering, are you?
MR. KIMBERLIN: Im not offering at this time.
THE COURT: All right.
MR. KIMBERLIN: Im using it to refresh his memory.
THE COURT: Well, he didnt say he had any memory to
refresh.
MR. KIMBERLIN: Okay.
BY MR. KIMBERLIN
Q Did you -- did you write a letter to your supervisor
or to your HR?
A I have written lots of letters to them. Be more
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specific.
Q This particular letter?
A Am I being asked to identify --
Q Yes.
A -- this -- contents of this letter?
Q Yes, right.
A I wrote -- I wrote an email to this effect.
Q And whats --
A It may be slightly different from what I finally sent
them. My practice is to write an email usually in word, and
then transfer it over. And I might edit it, since then.
Q Okay. Following your letter to your employer, were
you terminated from the employment?
A Following that and several other incidents, yes.
Q What day were you terminated?
A I was -- well, the termination was effectively on the
9th -- sorry -- yes, January 9th. And -- but they act -- but
what happened was they had told me initially it was going to be
a suspension. And they said we are going to suspend you until
this Kimberlin situation is resolved.
Q Yes.
A And I said what the hell does that mean? How is it
going to be resolved?
Q So --
A And so, you know, then later in the week, they decided
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it was going to be a permanent termination and back --
effectively back dated the date of termination to the 9th.
Q -- so, did they tell you in any email, why you were
terminated?
A To --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Were you terminated because of your logging against
Proctor Law?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Did you later tell people that you were terminated
because of me?
A Yes.
Q And when you told people that you were terminated
because of me, did you tell them that the attorney for your
employer had actually written a bill of ladings for your
termination?
A He wrote what -- he purported to be the reasons. I
did not believe they were the real reasons.
Q Okay. And did that attorney for your employer ask you
to perform any act after --
MR. OSTRONIC: Objection.
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THE COURT: Sustained.
BY MR. KIMBERLIN
Q -- now -- so did you blame me for your termination?
A I believe he --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: Yes, sorry.
THE COURT: He asked and answered.
MR. KIMBERLIN: Okay.
BY MR. KIMBERLIN
Q And have you gotten another job in the last two and a
half years?
A -- no, I have not because of your incident.
MR. OSTRONIC: Objection. He already said hes
unemployed.
THE COURT: Withdrawn
MR. OSTRONIC: Withdrawn. Okay.
THE COURT: Okay. Finish answering the question.
BY MR. KIMBERLIN
A Because of your continued harassment of myself and my
wife.
Q So, what happened to the other one draw up the draw on
the blog after your termination?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: Okay.
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BY MR. KIMBERLIN
Q Were you ever -- were you ever banned from banned from
Facebook because of attacks --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: -- on it?
THE COURT: Sustained.
BY MR. KIMBERLIN
Q How many depictions did you end up putting on the --
MR. OSTRONIC: Objection.
THE COURT: Well, let him finish the question.
MR. OSTRONIC: Sorry.
BY MR. KIMBERLIN
Q -- how many -- how many depictions in the proffer
Mohammed, did you end up putting on that while it was still
live?
A Well --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. WALKER: Im sorry.
BY MR. KIMBERLIN
Q Did you ever call the proffer Mohammed at PIFCO?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Now you have a blog of -- a blog called allergic to
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bull?
A Yes.
Q And in the past three years, how many log posts,
roughly -- Im not pinning you down to any exact figure. How
many blog posts have you made about me?
MR. OSTRONIC: Objection.
THE COURT: Overruled. He can answer that.
BY MR. KIMBERLIN
A On a sleeve, maybe a 100, Im not sure.
Q Okay. Do you have a Twitter account --
A Yes.
Q -- right? Under the name the Aaron Rodey [phonetic
sp]?
A Yes.
Q How many approximately tweets have you made about me
in the past two and a half years?
A I honestly dont know.
Q Would it -- would it be more than a 1,000?
A Probably.
Q Would it be more than 5,000?
A I dont know.
Q But it could be 5,000? Now --
A Im surprised to say on the record I made kind of an -
- I dont know gesture. Im sorry.
Q You mentioned a minute ago that Ive asked you to
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leave me alone, many times. Can you tell me how many times Ive
asked you to leave me alone?
A You technically only asked me once.
Q Have I asked your attorney?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Have you had enough now?
A I have never accosted you. I have never been in your
presence, except when Im forced to come to court with you. I
have left you alone. Ive never come to your house. Ive never
called your house. Ive never sent you an actual email. What I
have done is I write about you to the world at large --
Q Yes.
A -- just like Woodward and Bernstein did about Richard
Nixon.
Q All right.
A Did Richard Nixon have a right to say to them leave
me alone, stop writing about me.
Q Have you ever called me a murderer?
A No, I have not.
Q Have you ever called me a pedophile?
A I have said that I believe, based on the evidence,
that you are.
Q Have you published blog posts that call me a
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pedophile?
A Yes.
Q Have published tweets that call me a pedophile?
A Again based on the information I have, I have called
you an pedophile.
Q How many blog posts do you think you have published
that state that Im a pedophile?
A I dont know.
Q One?
A Maybe six.
Q Maybe --
A I dont know.
Q Okay. How many tweets, do you think youve published
that said Im a pedophile?
A Maybe 30.
Q How many?
A Maybe 30.
Q Three?
A Thirty.
Q Okay. Now, in the thousands of tweets that youve
made about me, are there positive tweets, or are they all
negative?
A All the tweets about you are they positive or
negative? I cant think of the last time I said something that
wouldnt tend to put you in a good light.
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Q Yes. Now are you aware that Im director of a
nonprofit?
A Ive heard you say that. It seems true.
Q And have you targeted my nonprofit in any way, shape,
or form? Or --
A Targeted how?
MR. OSTRONIC: Objection.
MR. KIMBERLIN: -- attacked --
THE COURT: Overruled.
BY MR. KIMBERLIN
Q -- attacked my nonprofit?
A Attacked, how?
Q Defanged, demeaning to try to ruin, destroy?
A I dont believe Ive said anything overall negative
about your nonprofit, itself.
Q Okay. Well, in your hand is blog post, Exhibit 8.
Would you have that marked, please?
A Looks like its all accurate. It appears to be a blog
post I wrote about you.
Q Okay. Now, the -- whats the title of that blog post?
A A Camera on his Pedophile.
Q Okay. A Camera on his Pedophile. Now when you put
the name of somebody in a blog post, what does Google do to
bring that name -- how does that affect Google until that Google
settles that name --
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A I am not an expert on search engine --
Q -- so that -- well its an organization. And it --
A -- work -- how it works --
Q -- well, in your opinion --
A -- what do you call it?
Q -- what do you know --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: I have an Exhibit to submit, your
honor.
THE COURT: Im sorry, what number was that?
MR. KIMBERLIN: 9.
MR. OSTRONIC: 9.
THE COURT: Thank you.
BY MR. KIMBERLIN
A This is only part of something Ive written.
Q And can you tell the jury what the caption said.
A The pedophile, Brett Kimberlin, is brass knuckles,
romance.
Q Okay.
MR. OSTRONIC: Your honor, is he offering it.
THE COURT: I dont know.
MR. KIMBERLIN: At -- well --
MR. OSTRONIC: Can we have it?
MR. KIMBERLIN: -- I may at -- in a -- in a minute.
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MR. OSTRONIC: Well --
MR. WALKER: Do you want it?
MR. OSTRONIC: -- then I dont know if its -- he
hasnt authenticated yet. Hes offering it.
MR. KIMBERLIN: Well, I can certainly --
THE COURT: He hasnt offered it, and I dont rule on
basic talking.
MR. OSTRONIC: But then he shouldnt be reading off
it.
MR. KIMBERLIN: Okay. My apologies, sir.
MR. WALKER: Well, he asked me to identify what it is,
and he said, that caption, that Brett Kimberlin is a --
MR. OSTRONIC: But thats part of what hes trying to
get in. I think.
THE COURT: Thats --
MR. OSTRONIC: Part of the offering thats my point.
THE COURT: Next question.
MR. KIMBERLIN: Excuse me?
THE COURT: Next question.
BY MR. KIMBERLIN
Q Oh. Now, you filed a lot of legal filings against me,
have you not?
MR. OSTRONIC: Objection.
MR. WALKER: I did --
THE COURT: Hes got a right of way.
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BY MR. KIMBERLIN
Q All our suits, peace orders, criminal charges?
THE COURT: Did he file a lot of lawsuits?
MR. KIMBERLIN: Yes.
THE COURT: Thats it?
MR. KIMBERLIN: Im asking him did he file any
lawsuits, criminal charges, or peace orders against me?
THE COURT: Oh against you?
MR. KIMBERLIN: Okay.
THE COURT: Overruled.
BY MR. KIMBERLIN
Q Oh, okay. Yes, lets see here. I have taken you to
court over loss of my job, and various other people as well. I
have also taken you to court over when you obtained an
unconstitutional peace order against me that forbid me from
speaking about you for six months not even to say Brett
Kimberlins a wonderful guy. I was not allowed to speak about
you at all after the judge disregarded controlling Supreme Court
precedent by name. And so, I sought relief in Maryland District
Court from that ruling. And I have filed a couple of papers in
response to the many, many filings you have made against me.
Q Have you ever filed a multimillion-dollar lawsuit in
Manassas, Virginia Circuit Court against me?
A As memory serves, I believe it was a $1 million
lawsuit. But I had many causes of action for seeking it.
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Q So total $66 million, or roughly?
A No, total $1 million, asked for it multiple different
ways.
Q Okay. What was the result of that --
A It was dismissed.
Q -- lawsuit? Dismissed. Do you know -- do you
remember what Judge Potter said about that case?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Did you file -- did you file another case in Federal
District Court against me?
A I just said I did.
Q Okay. And what was the result of that case?
A Well, much of it was mooted when Judge Rup stayed your
unconstitutional peace order.
Q Im talking about federal court.
A Im -- I understand, but the -- what happened in the
state courts affected this federal court decision.
Q What was the decision in federal court?
A So what was remaining got -- after it was mooted --
after I got the relief I needed in State Court on appeal, then
the federal court ended up being dismissed.
Q Okay. And the criminal charges which you filed
against me forever without going through each individual one.
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What were the results of all those?
A They were all --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: Okay.
MR. OSTRONIC: Im going to object, your honor.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q And the peace orders that you filed against me, what
were the results of those, other than the one you just
mentioned?
A The what, okay.
Q Peace orders?
A I filed a peace order against you after you had
stalked my wife in the parking lot outside of a Howard County
District Courthouse. You took photographs of her --
Q I asked you what other --
A -- and placed it on the Internet.
Q -- Im asking what was the --
A And I thought these --
Q -- result of that?
A It was not granted.
Q Now, on your blog, on every post, you have a donate
button.
A On every post.
Q On the front of your blog, you have a donate button?
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A I believe there is currently one asking for money for
other people.
Q And the other people are a website called what?
A Well, presently, it is the National Bloggers Club.
At one point there was also a thing called the Bloggers Defense
team, a legal defense fund, as I was dealing the many factious
peace orders, criminal charges, et cetera that you had filed
against me.
Q Now, do you know how much money those various entities
had raised?
A No idea.
Q But it would be safe to say it was more than a
thousand dollars, right?
MR. HOGE: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Now, on Twitter -- lets talk about Twitter for a
second, and Im assuming the jury might know what Twitter is,
but can you just explain briefly what Twitter is?
A Twitter is what is often called a microblogging
platform. It is where you put out very short messages. It
cannot be more than 140 characters, and its a way of just brief
messages to the world. Sometimes you argue with people on
topics, sometimes you just say something like, oh, rest in peace
Robin Williams, or something like that. You know, and sometimes
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-- in my particular case I often use it to promote blog posts
Ive written.
Q You use Twitter to get more traffic to your website?
A Well, its a way people keep track of what people are
writing.
Q Okay, and on Twitter, you mentioned that you had a lot
of tweets. Are you familiar with a meme that is used on the
Internet called Pedobear?
A Yeah, Ive heard of it.
Q Youve heard of it. Okay, can you tell the jury what
a Pedobear is?
A Its a darkly comic cartoon character. Its used by -
- its hard to explain what -- its just, they use it to depict
something as a pedophile. Such as, you know, I cant even think
of a good example, but it is -- the character is supposed to be
this evil pedophile, and its very dark humor, to be blunt.
Q So, have you ever used that graphic to tweet on your
blog?
A Yes.
Q Have you ever superimposed my photograph on to that --
A No.
Q You havent.
A I have not superimposed your photograph.
Q Have you ever published a graphic of a Pedobear with
my face superimposed on it?
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A Yes.
Q Okay. How many times do you think --
A I dont know, maybe more than a dozen.
Q And have you ever taken a tweet or a blog post and
posted more than one of those graphics?
A Done more than one in one post?
Q Uh-huh.
A No, not typically.
Q Okay, Im going to -- I think Im going to lump these
together -- is there a date on these? Okay. Im going to hand
you these. This is Plaintiffs Exhibit No. 10.
A Uh-huh.
Q See if you can identify those.
A Do you mean authenticate them?
Q Authenticate, identify --
A Which part of this?
Q Is that something that came off your Twitter account
and your blog, or what?
A What, like --
Q Did you publish these?
A I mean, I mean I have tweets from what appear to be
other people in this thing.
Q Okay, on that first page, the last tweet, is that your
tweet?
A It appears to be so.
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Q So and that Pedobear with my photograph on it --
MR. WALKER: Your honor, Im trying -- can I quickly
ask you: Is he offering this now?
THE COURT: I havent heard him say, I offer this.
MR. KIMBERLIN: Im going to offer these into
evidence, your honor.
THE COURT: The witness doesnt get to testify about
it until it is offered into evidence.
MR. KIMBERLIN: Okay, then Im going to offer it into
evidence.
MR. HOGE: And Im going to object, your honor.
MR. WALKER: But we havent looked at the rest of
this.
MR. HOGE: Based on the fact that a lot of this --
your honor, this complaint was offered on August 30th of 2013,
therefore anything he submits as evidence for this should be
part of the complaint. Unless hes alluded any of these things
--
THE COURT: It should be before that.
MR. HOGE: Right.
MR. KIMBERLIN: Your honor, there was a -- this thing
has gone on, and there was a second amended complaint filed in
the spring of this year.
THE COURT: It doesnt include the dates on this, what
were these dates?
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MR. WALKER: Some of them dont -- I dont see a clear
date. I can look at them and see if I can figure it out.
MR. HOGE: It might be on the bottom there.
MR. WALKER: Maybe.
MR. HOGE: But a lot of them came afterwards, your
honor, and --
THE COURT: This is August of 2013.
MR. HOGE: Thats fine, but not all of them are that
way.
THE COURT: Then just make sure that -- first of all,
why do you need so many of these, if so many are the same?
MR. KIMBERLIN: Okay, I can limit it.
THE COURT: July of 2013.
MR. HOGE: Thats fine. There are some in there from
September that I saw, which --
THE COURT: September of what year?
MR. HOGE: 2013.
MR. KIMBERLIN: Well, that would be covered in --
MR. HOGE: Not if you didnt update the claim.
THE COURT: But do you offer this?
MR. KIMBERLIN: Well, like you said --
THE COURT: Well, we can take them out later.
MR. HOGE: Okay, your honor, yes, your honor, thats
fine.
BY MR. KIMBERLIN
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Q So you had these published depictions of me in the
Pedobear graphic on multiple occasions; am I correct?
A Well, since multiple means more than two, easily.
Q Now, when you publish these, you usually put them
weekly, right?
A Yeah.
Q Can you leave these here?
A I will warn you there is a typo on the middle, and
again, its my dark sense of humor, but I wrote --
MR. HOGE: Is this one part of the package you
offered?
MR. KIMBERLIN: Yes, but Im not going to get into
anything.
MR. HOGE: I know.
MR. KIMBERLIN: Thats outside of the --
BY MR. KIMBERLIN
A -- Okay, that was so funny. Brett Kimberlin
accidently pulled out of his preteen girlfriend laughing.
Q Okay, can you read that?
THE COURT: Are you offering these into evidence?
MR. KIMBERLIN: I am.
THE COURT: They dont need to be read. They are
received. The jury will see them.
BY MR. KIMBERLIN
Q Okay, I want to show you that one there. Is that more
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than one of the graphic?
A What is wrapped? What is it?
Q Im asking you to identify that. Is that something
off --
A As far as I can tell, thats like somebody has cut and
pasted this image over and over again. Im not sure how that
got created.
Q And you dont know who made this?
A I did not create a graphic like that, no. Do you want
me to look at this?
Q Well, Im just trying to make sure that we dont get -
-
A Well, here, let me put --
Q Anything filed that --
A Well, this one is not even by me.
Q Okay. Can I ask you about it here -- so, its safe to
say you tweeted the Pedobear with my picture in it, and posted
it on your website. Is that fair to say?
A I guess -- this would be more than three?
Q Uh-huh.
A Sure.
Q Now, you know the other defendants, Mr. Ali, Mr.
Malone, and Mr. McCain, okay?
A Every single of them are kind gentlemen who came to my
aide after they learned about how you were treating me. They
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are my friends.
Q And what, the way this sharing works is you publish
something, you send a link to them, they link back, you send a
tweet, you put Mr. McCains Twitter --
MR. HOGE: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: Im asking.
THE COURT: Is this a question?
BY MR. KIMBERLIN
Q Is this the way -- how does the Internet work if you
want to spread something virally through the Internet and then
part to your friends?
MR. HOGE: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Can you tell me, do you ever tweet to Mr. McCain, or
play a link to Mr. Colds [phonetic sp] blog, or put a link to
Mr. McCains blog, or Twitter account? Is there some way that
you guys communicate?
MR. HOGE: Objection.
THE COURT: What is the question?
MR. KIMBERLIN: Im trying to ask him when he
publishes an image or tweet like this, how he gets that to post
to other people?
BY MR. KIMBERLIN
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A Well, its on my blog. I tweet it out, they follow my
Twitter. They see everything I write, as do many people who are
not being sued, by the way.
Q So if you want to send something to like Mr. McCain,
so he sees it on his Twitter and you put it at RS: McCain.
A If I want him to see a message in his mentions, that
is one way to do it.
Q And the same goes for Mr. Cold and Mr. Akbar, yes?
A Yes. I know the kinds of things that I want them to
see.
Q And do you ever -- when you post a post, a blog post
about me being a pedophile, do you ever put a link, or send a
link to that post? To any of the other codefendants?
A Yes, just like lots of people in the office, who say
this is interesting, why dont you look at it?
Q Okay, now when you call me a pedophile, you must have
some basis for that, so Im going to let you tell the jury why
you -- you know, why you think thats true, and where is the
truth? Where is the evidence?
A Okay, well its a number of different things.
Q Okay.
A First off, I read Mark Singers book, Citizen K.
Q First of all --
The COURT: Its your question, you asked the
question.
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BY MR. KIMBERLIN
Q I understand. Go ahead.
A And in that book it discusses how you had a very
questionable relationship with a young girl. He identifies her
as Jessica Barton [phonetic sp]. Her real name, I have since
learned, is Deborah Barton -- or Debbie. She was 10 years old
when you came into her life according to Singer, and it also --
by the way, this is backed up by Indianapolis Star newspaper
articles I have also read. She was 10 years old when she came
into your life. She was 14 years old when you left it, I think,
I understand when you were arrested for the series of bombings
you committed, and you were convicted of. We do not have direct
evidence of any sexual contact with this girl, according to Mark
Singer and again the Indianapolis Star, but there were
suspicious circumstances. You were taking long trips, just you
and her, this young girl. You were going around allegedly
calling her your girlfriend. You, and similar kinds of very --
you know, behavior that would alarm any parent. Thats one
piece of evidence. Later on, in the same book, they talk about
an incident where you -- actually, at the moment -- they were
trying to figure out where you were at the moment a woman named
Julia Scyphers had been murdered, and it was suspected all along
that you were the -- that you may have put a contract on here,
you know.
Q I object, I mean --
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A Thats what the book says.
THE COURT: Well, Im sustaining the objection because
that has nothing to do with -- at this point.
MR. WALKER: Well, let me jump closer to it.
THE COURT: Unless there is a segue way.
MR. WALKER: Yeah, there is a segue way.
BY MR. KIMBERLIN
A Yeah, so the question was, where were you at that
time, and the answer you eventually gave Mr. Singer, according
to Mr. Singer was that you were delivering t-shirts to two young
women. One was a daughter of a friend of yours, and another was
just identified as the friend of this daughter, and she was 15
years old, and you had said to Singer that you had kind of a
romance with her. I also have since learned that you also gave
an interview -- again, this is according to the sources Ive
read -- in a magazine called the Boston City Paper, and in that
interview, there was actually an album review of an album you
made called -- I believe something like -- something to the
effect of by a band you were in called Epoxy. You were credited
with writing the lyrics of these songs. One was called Teen
Dream, and another was called Waiting to Meet, and both of these
songs were about adults having sex with teenagers, and you gave
a quote in an interview for this music review where -- I wont
repeat the explicative, but you talk about, yes, its about
having sex, and this is when you used the explicative, a
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teenager. Okay, and then you go on to say this is something all
men want to do, but they wont actually act on it, or something
to that effect, and we have the actual articles with us. In
addition to that, I became aware in I believe it was July of
2013, that you had filed a peace order against a guy named Jay
Elliot and that your wife, Tetyana [phonetic sp] Kimberlin had
sought a protective order against you, and that you had also --
that Mr. Elliot had sought a peace order against you, as well,
and you have a habit of every time something bad happens to you,
you blame me, so I wanted to find out what you were going to say
about me that day. So I went to attend that hearing, and I
witnessed her come in the court and say she needs protection
from you, and Mr. Elliot saying he needs protection from you,
and then I saw at the end of the hearing your wife put in
handcuffs, and I didnt know what had happened. So, I was
attending that hearing with Mr. Hoge, who you see in the bowtie
over there, and we went immediately downstairs to where they
keep the records, and we were -- we were trying to find out what
were the supposed charges? We assumed it was a criminal charge
because you had a past history of filing false criminal charges
against people, and you know, we couldnt find out anything, and
so over time, Mr. Hoge by some means got to know Mrs. Kimberlin,
and we found out she told us a story. Now, at some point, I
became --
MR. KIMBERLIN: Im going to object to whatever she
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told them.
THE COURT: Sustained.
BY MR. KIMBERLIN
A Well, Im trying to explain why I believe this about
him.
THE COURT: Well, you still cant testify as to what
she told you.
MR. WALKER: Okay, well --
THE COURT: Has he answered your question?
MR. WALKER: I have not finished answering.
THE COURT: But its your question. Has he answered
it?
MR. KIMBERLIN: Im letting him tell the jury when he
calls me a pedophile. I want him to say it.
MR. HOGE: Well, your honor --
THE COURT: Well, the point it, has he answered the
question? Otherwise, if he hasnt, ask another question. You
stand there as he narrates --
MR. KIMBERLIN: All right.
BY MR. KIMBERLIN
Q So, this book that you are relying on about me that
you say is authorized, did that book say I was ever arrested for
pedophilia? Charged with pedophilia? Charged with any sexual
offense of anybody?
A No, and incidentally, its the district court of
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Maryland that says it was an authorized biography.
Q The district court of Maryland?
A Yes, in the parole revocation hearing, they said
specifically that it is authorized.
Q Please. First of all, was I ever charged with sexual
abuse of anybody at any time in Indiana when this supposed
incident that you are telling people of occurred?
A To the best of my knowledge, you were never charged in
Indiana.
Q Okay, and the -- you dont know whether or not the
young girl testified at the grand jury in my case?
A I dont know.

Q That there was never any sexual contact between us?
A That is what you say, and I dont take what you say
with much credence, Mr. Kimberlin.
Q You dont know that the girls mother asked me to take
the young girl on a vacation or two vacations because she had
lost her father?
A I dont see why that justifies sending a child away
with a strange man.
Q Strange?
A You are legally a stranger to this child.
Q Well, I dont think so. But anyway, and the other
incident about giving t-shirts to 15-year-old girls? Does that
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show that I am a pedophile?
A Well, I do not think it is normal to romance a 15-
year-old girl.
Q To romance by giving her a t-shirt when shes the
daughter of one of my best --
MR. HOGE: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
A Actually I believe it was -- sorry, sorry.
Q A t-shirt turns into pedophilia?
MR. HOGE: Objection.
THE COURT: Is that a question?
BY MR. KIMBERLIN
Q My wife -- when you went into court, and you saw her
taken into custody, did you write that I had her arrested?
A I understood you to be the cause of her arrest.
Q Do you know the difference between an arrest and a
mental commitment?
A Actually, constitutionally speaking, there is no
difference. Both are a seizure under the 14th -- Im sorry,
under the 4th amendment.
Q So, I have plaintiffs exhibit No. 11?
A Okay.
Q And could you read the title of that?
A Let me identify it first.
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Q Can you identify it first, please?
A Okay, the title is breaking, Kimberlin attempted,
failed to have his wife involuntarily committed.
Q Involuntarily committed.
A Yes.
Q Well, later on, you changed that to arrested.
MR. HOGE: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Now, at that hearing, did you -- you attended that
hearing. Did you know the judge asked me wife if there had been
any type of sexual abuse at all in our marriage, to our kids --
MR. HOGE: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q So, you had contact with my wife after that. A couple
of days, weeks, whatever.
A She sought my legal help.
Q She sought legal help, and after she sought legal
help, did you help her prepare a document?
A Im going to have to object myself, because there is
an attorney-client privilege that applies to this situation.
THE COURT: Well, I know lawyers are tough witnesses,
but they dont get to make objections when you are a witness.
MR. HOGE: I was -- okay, I object it.
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THE COURT: That would be lawyer --
BY MR. KIMBERLIN
Q You are a Virginia lawyer?
A Uh-huh.
Q Under Virginia law, did you enter in to a -- as
required by Virginia law, a retainer agreement with my wife?
A Virginia law does not require a formal written
agreement, it just requires a typical oral contract. If I said
to you, Ill buy that pencil for a dollar, and you hand it to
me, thats an agreement.
Q So, once you and Mr. Hoge, and maybe Mr. Akbar and
McCain talked to my wife --
MR. HOGE: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: Contacted my wife --
MR. HOGE: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q What happened after you met with my wife?
A In what respect?
Q Did she file any document in court?
A One, she filed criminal charges against you for sexual
offense in the third degree. I can go into more detail about
that if you would like. She also filed a motion to continue.
You had filed a protective order against her claiming that she
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was -- on behalf of your children, claiming that she would harm
them. She believed the greater danger for harm is you, Mr.
Kimberlin, because she had told me, and Im basing this on
whats in the document as well, that you had seduced her when
she was 14 years old in the Ukraine. She told me that you made
numerous trips back and forth from the United States to the
Ukraine. I dont know how many. She said that when she was 15,
you brought her over to the United States, and then proceeded to
violate that statute around 50 times. I mean, basically, its a
statutory rape statute, as you folks might understand.
Q So --
A Im not done, and on top of that, at the same time she
said she had another cousin there named Tetyana something -- I -
- its one of those Russian, Ukrainian names that is many, many
consonants and vowels, I have trouble remembering it.
THE COURT: Be careful when you are saying that, a
bunch of Ukrainians are a hot topic.
BY MR. KIMBERLIN
A Yes, and she -- basically her first name was Tetyana
as well, and as spelled for a stenographer who might ever record
this, T-E-T-Y-A-N-A, I believe, and what Tetyana Kimberlin
witnessed was she walks in, and you are kissing this 12-year-old
cousin.
Q So thats -- thats all the stuff that you are putting
in this pleading, right?
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A Again, how the pleading got formed --
Q This criminal charge against me?
A How the pleading got formed is a matter of privilege,
sir.
Q Now --
THE COURT: Excuse me, this might be a good point to
stop. Lunch is at 12:30. Im going to send the jury to lunch.
Unfortunately, no dry places I think that you are going to be
able to eat, so you are going to have go outside, even if you go
into the cafeteria next door. Please be back by 1:30. Please
leave your pads on your seats, and dont discuss this case.
MR. WALKER: Can I ask? There are several documents
that I have authenticated.
THE COURT: Make sure everything is marked and given
to the clerk, even if it is not admitted into evidence. It
stays as part of the record.
MR. WALKER: All right. I think none of this has
been.
THE COURT: Youre talking about marked, right?
MR. WALKER: So I give it to you?
THE COURT: Yes.
MR. WALKER: Okay, this is something I am not very
familiar with. I apologize, your honor. Ive done 10 years of
law but not many trials.
THE COURT: For the record, the jury is out of the
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room. Now, gentlemen.
MR. HOGE: Yeah.
THE COURT: First of all, I need the defendants
counsel.
MR. HOGE: Okay.
THE COURT: It was too confusing for the jury. You
see them searching to find the various individuals. Well put
you up there so you can be there. The other thing is, this jury
is all -- this case can bench today.
MR. KIMBERLIN: Yes.
THE COURT: So keep that in mind.
MR. KIMBERLIN: Im going to move it along.
THE COURT: Yeah.
MR. KIMBERLIN: Im going to move it along.
THE COURT: Adapt your approach.
MR. KIMBERLIN: I know.
THE COURT: You need to move it along.
MR. KIMBERLIN: Keep going, yes.
THE COURT: Get to whatever you allege -- Im going to
respond to that gentleman. What have you alleged that these
gentlemen actually did? Yes, sir, what was his concern? Whats
his concern?
THE CLERK: His concern is he has something in federal
court on the 14th, but we should be out of here.
THE COURT: We have to finish this. You have to
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understand this.
MR. KIMBERLIN: Where have we gotten today?
THE COURT: You know, you dont want to anger this
jury. They are told that -- some of them have problems tomorrow
as well, some of the members of the jury, so we have to move
this along. Now, do you have questions of the gentleman who is
on the stand?
MR. OSTRONIC: Yes, sir, about 10.
THE COURT: Okay, so everyone needs to keep that in
mind.
MR. HOGE: This thing has to move.
MR. HOGE: Yes, your honor.
THE COURT: Now, what I would encourage you to do, is
if there are more exhibits that you intend to use, if you could
get back about maybe 1:20 or something like that. Look at those
exhibits beforehand so we dont have these delays. I mean, you
have to have a brief delay so that -- to move a little faster
when we come back. Because at the end of the day we still have
to do jury instructions and closing argument before we can get
this case to the jury.
MR. HOGE: Yes, your honor.
THE COURT: It goes to the jury.
THE BAILIFF: All rise.
(Recess.)
THE COURT: Have a seat. Who's your next witness?
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MR. KIMBERLIN: Just want to finish up very quickly
Mr. Walker, and then I'll call Mr. Hoge, I'll call Mr. Akbar,
and I'll call Mr. McCain. Very quickly. I'll try to move it
quicker, ask questions faster. Won't --
THE COURT: Don't -- not on my account, but if, you
know -- observe the jury care --
MR. KIMBERLIN: Yeah.
THE COURT: Okay. They want to get through this.
MR. KIMBERLIN: I understand. And I'm ready to rock
and roll.
THE COURT: Plus, if you have to do stuff inside, a
day like today's a good day to --
MR. OSTRONIC: Amen.
MR. KIMBERLIN: Gee.
THE COURT: We've had several leaks in the building,
but hopefully you won't be needing those umbrellas in here.
Just about flooded out a couple of weeks ago up on this floor.
All right, sir, you can take the stand. He's previously -- go
ahead.
BY MR. KIMBERLIN
Q When we ended up, we were talking about you were
helping my wife file some charges. Can you tell the jury what
the result of those charges were?
A In what sense, sir?
Q Were they dismissed?
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A My understanding is that she decided she no longer
could fight you. She couldn't beat you in court, and she
withdrew the charges, and has since, unfortunately, fled.
Q Fled?
A Yes. Last I heard, she lives somewhere in Utah.
Q Well, the charges were dismissed, right?
A Yes.
Q Okay. And the department of children's services, or
social services, investigated those charges, right?
A I don't know.
Q Did you call the FBI and ask them to come through the
department of social services and tell them that my wife was
present there at the time?
A I'm sorry, what --
Q Did you ever call the FBI agent --
A I have called --
MR. OSTRONIC: Objection.
MR. WALKER: -- him in relationship --
MR. OSTRONIC: Objection.
THE COURT: Okay. Sustained.
BY MR. KIMBERLIN
Q So, you talked a lot about my daughter, my 15-year-old
daughter, on your blog --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: -- on Twitter.
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MR. OSTRONIC: Okay.
THE COURT: That's a leading question, sir.
MR. KIMBERLIN: Okay. Here's a tweet right here --
THE COURT: Have it marked.
MR. OSTRONIC: Your honor, I will note that half this
blog is 30.
BY MR. KIMBERLIN
Q It's marked as Plaintiff's Exhibit No. 12. Can you
identify that? Is that your tweet?
A It appears to be. Yes.
Q And what does it say?
A It says --
MR. OSTRONIC: Objection, your honor. It's after --
THE COURT: Are you offering that?
MR. KIMBERLIN: This lawsuit --
THE COURT: Are you offering this exhibit?
MR. WALKER: Actually, I --
THE COURT: Hold on a second. Are you offering that
exhibit?
MR. KIMBERLIN: I believe so. Yes.
MR. WALKER: I need to amend my answer. I -- sorry.
THE COURT: Hold on a second. Can you recognize that
or not?
MR. WALKER: Well, the problem is it's altered in some
ways. There's some text at the bottom that is --
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THE COURT: So you don't recognize those things that
have been changed on this?
MR. KIMBERLIN: Well --
MR. WALKER: I'm sorry. Two people talked at once.
What were you asking --
THE COURT: Can you identify that document or not?
MR. WALKER: The whole document, no.
THE COURT: All right.
BY MR. KIMBERLIN
Q Can you identify the tweet within the document?
A I see. Let's see here. I see something looks like --
trying to make sure. It's -- no, parts of this is -- cut off.
I mean, you can see, for example, it says, but discover It's
cut off. You have not produced the entire thing.
Q Have you stated on your blog that people have a right
to attack my daughter because of corruption of blood?
A No. I have literally said the opposite of that. I
said one of the things that makes this country great is that we
judge people by them. Not by who your father is, not by who
your daughter is. Not by anything. And I talked about how in
the treason clause, they do away with the principle of the
corruption of the blood. I specifically cite that as an example
of what makes America great. We do not judge people by race,
religion, or who your parents are. Even when you're a traitor,
we do not judge your children by your treachery. Even when
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you're a terrorist.
THE COURT: What is it?
MR. KIMBERLIN: It's a part of the blog --
THE COURT: These aren't your notes?
MR. KIMBERLIN: No.
THE COURT: You sure?
MR. KIMBERLIN: Yeah.
THE COURT: Okay.
BY MR. KIMBERLIN
Q Okay. I'm going to show you Plaintiff's Exhibit No.
13. Does that look like part of a blog post from your blog?
A Looks like an altered part.
Q Is it true that in a blog post that you say that I
wish there was somebody to bring Kimberlin to justice without
his elder daughter, or any of his family, being dragged into
this, but Brett has made this impossible?
MR. OSTRONIC: Objection.
THE COURT: Overruled.
MR. KIMBERLIN: I'd like to show this to counsel.
THE COURT: Do you have an answer to that?
AW: I don't remember the question besides the --
THE COURT: Ask the question again.
BY MR. KIMBERLIN
Q Did you say that in a blog post --
A What?
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Q -- at any time -- did you say in a blog post, I wish
there was some way to bring Kimberlin to justice without his
elder daughter or his family being dragged into this, but Brett
has made this impossible?
A I was lamenting the fact that your daughter is
suffering as a result of your misconduct.
Q I would hand you Plaintiff's Exhibit No. 14.
A Okay.
Q Do you recognize that?
A Well, give me a minute. This is chunks of an altered
post. I can see clearly where there's things jumping from one
place to the other. There's this mysterious black square in the
middle of this, that document, and the text on this page doesn't
line up with what comes next --
Q Do you --
A -- so there's clearly pages missing.
Q Do you recognize the first page of that document?
A Yes. Its looks vaguely like something I wrote, but
altered to some degree I'm not sure of.
Q Can you read the title to that post?
A Vile. Brett Kimberlin's Manipulation of his
daughter.
Q Now, you said that you were representing my wife in a
matter of -- you're not licensed to practice law in Maryland,
are you?
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A And I did not practice law in Maryland.
Q Didn't practice law in Maryland. Now, you stated --
have you stated on various times that if I sued under -- for
defamation, that you would take depositions from my daughter and
her friends?
A I thought it was very likely that such depositions
would occur. That is basic legal defense. And I'm not the only
person that said that. Mr. Levy, who used to be your own
attorney, Paul Al Levy, has said the same thing --
MR. KIMBERLIN: Objection. Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Now, you -- after you helped my wife file these
things, you create with Mr. Hoge, am I correct? A defense fund
for my wife, to raise money for her?
A That is correct.
Q And you hired -- you raised how much? A thousand?
$100 --
A I don't know. I did not current -- personally control
the funds.
Q But suffice it to say, it was a fairly significant
amount.
A Well --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
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BY MR. KIMBERLIN
Q And you used that money to hire an attorney, another
attorney, to represent my wife.
A I did not use the money. As I recall, John Hoge
decided to loan several thousand dollars to your wife to help
her get an attorney, and as of last I heard, he's still in the
red on that.
Q Oh, he loaned it to her? Okay --
A Well, I don't -- no. It's not a loan to her. We were
hoping that he would get it back from donors.
Q So you did a blog post -- Plaintiff's Exhibit No. 15.
A And you're asking if this is authentic.
Q Yes. What's the titled of that -- of --
A I'm not done reading it, sir. The Tetyana Kimberlin
Defense Fund.
Q Now, these charges were nolle pros. Are you aware of
that?
A Are you talking about the charges that we -- with the
defense fund?
Q That you said --
A The defense fund was not about filing criminal
charges. The defense fund was for helping --
Q Okay, but I'm talking about the charges that you said
you helped my wife file.
MR. OSTRONIC: Objection. He was talking about the
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defense fund --
MR. KIMBERLIN: No, I'm just moving backwards a little
bit. I'm saying --
THE COURT: The charges that he helped your wife file
while he was representing her?
MR. KIMBERLIN: Yes. I'm asking -- does he know
whether they --
THE COURT: What does -- why is that relevant?
MR. KIMBERLIN: -- whether they were nolle pros. Does
he know whether they were nolle pros?
MR. WALKER: I believe I answered.
THE COURT: Well --
MR. OSTRONIC: That was --
MR. KIMBERLIN: No. He said that she --
THE COURT: -- the objection is sustained.
MR. KIMBERLIN: -- you stated that she --
THE COURT: The objection was sustained to that
question. How is it relevant if the State entered a nolle
prosequi? All that means is that the State elected not to go
forward. It doesn't mean anything to do with whether the
substance of the charges. Now --
BY MR. KIMBERLIN
Q Now, after they -- those charges were dismissed, nolle
prossed -- whatever you want to call it -- did my wife have an
email conversation with you?
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A I believe --
MR. OSTRONIC: Objection.
MR. WALKER: Yeah. Attorney client privilege.
MR. OSTRONIC: Attorney client, your honor.
THE COURT: Sustained.
MR. KIMBERLIN: It's not attorney client.
THE COURT: No, but how is he going to testify to what
your wife --
MR. KIMBERLIN: He's going to testify.
THE COURT: Well, no he isn't. That's hearsay, and
there's no exception to the hearsay rule that that would come in
on. She's not here, and you're obviously the statement for the
truth of the matter, so --
MR. KIMBERLIN: I'm not offering what -- to show what
she told him. I'm offering to show what he told her.
THE COURT: Was it out of court?
MR. KIMBERLIN: Was it --
THE COURT: Was the statement made out of court?
MR. KIMBERLIN: It was made in an email.
THE COURT: Isn't that out of court?
MR. KIMBERLIN: Yeah.
THE COURT: And are you offering it for the truth of
the matter of the statement?
MR. KIMBERLIN: I'm offering it --
THE COURT: That's yes or no. Are you offering the
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statement to show that it was true at the time it was made?
MR. KIMBERLIN: I'm offering it to show that he
defamed me in his email to my wife, which is part of this case,
and that she told him to remove articles because they were not
true.
THE COURT: Okay. That's what you wanted to say, but
that's not the answer to my question. My question is are you
offering the statement to show that at the time the statement
was made, it was true?
MR. KIMBERLIN: I'm offering it to say that his
statement was true.
THE COURT: And it was made out of court, correct?
MR. KIMBERLIN: It was made in an email. I'm asking
him to look at the email -- and state whether he wrote that
email.
THE COURT: Well first, let him identify it.
MR. KIMBERLIN: Okay.
THE COURT: If it's his statements, it's admissible,
because he's a party opponent.
MR. KIMBERLIN: Yes.
MR. WALKER: Your honor, there --
THE COURT: You don't get to do that.
MR. WALKER: Sorry. I apologize --
THE COURT: You don't have to apologize --
MR. WALKER: -- but there's an attorney client --
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THE COURT: -- lawyers are hard to control on a
witness stand. You know.
MR. WALKER: Okay. Guilty.
MR. OSTRONIC: Your honor, I'll just note that this
was not -- this was a forwarded message from somebody else. It
doesn't -- okay.
THE COURT: If we're going to do this with every one
of those pieces of paper over there, there's not enough hours
left in the day for that.
MR. KIMBERLIN: I'm trying to move quickly. And I'm
almost done with this witness. This is an email thread --
THE COURT: Well, you have him if he can identify it.
BY MR. KIMBERLIN
Q I will ask you if you can identify part of the email
thread.
A The problem is this is attorney client communication
at that point.
Q Your honor, there's no attorney client --
A Yes. There was. We were --
THE COURT: Hold on a second. You can't argue with
him. Were you representing her at that time?
MR. WALKER: At that time. Yes.
MR. KIMBERLIN: Your honor, he wasn't representing her
--
THE COURT: Well, he has said that he was.
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MR. KIMBERLIN: She --
THE COURT: You're not a witness right now. You're
asking the questions.
MR. KIMBERLIN: No. I know, but I can argue --
THE COURT: Well, I'll reserve ruling on it until the
point that that argument comes up. But -- so move on to a
different document.
MR. KIMBERLIN: A different document.
THE COURT: And what number is that?
MR. WALKER: That's --
THE COURT: Fourteen?
MR. KIMBERLIN: This is Exhibit No. 16.
THE COURT: Fifteen. Sixteen. Okay. Make sure that
you move those documents over here to the clerk, because I don't
want them to get mixed up with stuff that's not --
MR. KIMBERLIN: And, you know, my objection is that
this email was sent not just to --
THE COURT: Well, you can't testify about what it was
--
MR. KIMBERLIN: No. I'm just talking about attorney
client. He can't have attorney client privilege and have it
sent to Mr. Hoge, too.
MR. WALKER: Actually, since he was my paralegal --
THE COURT: Hold on a second, gentlemen. Don't put me
out of work here. I'll make the ruling. I'll reserve ruling on
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that.
MR. KIMBERLIN: All right.
BY MR. KIMBERLIN
Q Now, you started at -- you were involved in the
campaign Everybody Blog about Brett Kimberlin Day, or
something to that --
A I did not start Everyone blog --
Q No, I said you were involved with it.
A Involved how?
Q You participated in it.
A A number of people started doing it. I noted that it
was being done. I said -- I was humbled to see people rising up
to help protect me. They literally took the attitude of, If
Brett's going to sue Aaron, he'll have to sue me too. And
hundreds -- I don't even know how many people took that
attitude. If Brett's going to continue to abuse the court
against Aaron, they're going to do that -- I'm sorry. I get
emotional because I was moved by how many people stood up for
free speech with me. And I said I can't ask you folks to
participate --
Q I just asked you a simple question. Were you involved
with that?
A Again, that's a vague term, so I'm trying to explain
exactly what my quote unquote participation was.
Q Okay.
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A So I said to them, I can't ask you to do it --
Q How many blog posts do you think were generated from
Everybody Blog about Brett Kimberlin?
A I don't know.
Q Thousands?
A Possibly.
Q Tens of thousands?
A Yes. And none of them defamatory, as far as I know.
Q No. Now, you were -- also, you were involved with
another campaign called Everybody Blog About the Howard County
Prosecutors, or Howard County State's Attorney's Office --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: Your honor.
THE COURT: How is the Howard County prosecutors and
the Howard County State's --
MR. KIMBERLIN: Because they filed charges against me
in Howard County that have been dismissed, and --
MR. OSTRONIC: Objection to the word they.
THE COURT: What does that have to do with this?
MR. KIMBERLIN: Because they attacked the --
MR. OSTRONIC: Objection to the word they.
THE COURT: That's not relevant to this case.
BY MR. KIMBERLIN
Q Are you familiar with a campaign that you started
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called Maryland is for Stalkers?
A I did not start that campaign.
Q Are you aware of that --
A I don't know -- it's a campaign. It's a phrase one
person used. I believe it was Paul Lemon.
Q Right. Now, I'm going to take this opportunity to ask
you to identify these other documents, and -- put it into
evidence. I have another question. In a lot of your blog
posts, you put this graphic -- popcorn graphic. You tell people
to get out the popcorn. Can you explain that?
A Let's see here. I believe very strongly in the idea
of being a happy warrior. To show cheer, and, you know, vim,
even in the case of adversity. You have been suing me, filing
peace orders, filing criminal charges, et cetera, for almost
three years now, Mr. Kimberlin, and so it is my way of showing
people that I am cheerful as I do this. Get out the popcorn.
We'll have some fun.
Q This is entertainment, right?
A It's what? Am I supposed to cry every time you sue
me, Brett? It's getting to be tedious.
Q Every time I sue you. How many suits do I have
against you right now, Mr. Walker?
A Oh, let's see here. You're presently suing me in two
courts, including this one. You've also filed two peace orders.
Q Have I -- do I have a peace order against you?
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A No. Because you lost.
Q Did I lose?
A Yes. You lost.
Q Did Judge Fahey [phonetic sp] issue that peace order?
A He briefly issued it, and then Judge Rupp took it away
as unconstitutional.
Q Was it Judge Rupp or Judge Johnson?
A No, Judge Johnson was the first time. You had filed
one peace order. That got appealed. Judge Johnson struck it
down. And then you filed a second one. Mr. Fahey disregarded
Brandenburg v. Ohio, a binding Supreme Court precedent, and then
when that got to Judge Rupp, Rupp says, Well, that violates
Brandenburg v. Ohio.
Q Isn't it true that you came in front of Judge Johnson
and told him that this stuff would not happen in the future, and
Judge Johnson ruled -- gave you a break?
A I'm not sure I said five words during the entire --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: Gave you a break after Judge Fahey --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: -- that ruling?
THE COURT: You said you have a few more questions --
MR. KIMBERLIN: Yeah. I am -- I'm pretty much done.
I'm just trying to get all these documents into evidence right
now.
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THE COURT: What are those documents? They've all
been marked --
MR. KIMBERLIN: Some of these have been marked
already.
THE COURT: -- and identified. Just put them there,
and we'll go over the exhibits later. Let's move on with the
witnesses. I'll reserve ruling on those documents.
MR. KIMBERLIN: Okay.
BY MR. KIMBERLIN
Q I have one further question. You stated earlier that
you didn't ask, or target my employer, my nonprofit -- can you
identify this --
MR. OSTRONIC: Is this in --
THE COURT: Is that marked?
MR. KIMBERLIN: No. Hold on. Let me --
BY MR. KIMBERLIN
A This is not something I wrote, so I can't authenticate
it.
THE COURT: What is that -- number what? Seventeen?
UNIDENTIFIED MALE: Can I see that?
MR. OSTRONIC: You going to have it marked?
BY MR. KIMBERLIN
Q So are you saying you don't recognize this at all?
A I recognize some. I don't know the rest of it, so I
can't authenticate it. The fact is is this is -- it looks like
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something written by somebody working for the Dan Backer
[phonetic sp] law firm. These are people who believed in my
cause, and offered pro bono representation. As you pointed out,
pro bono means they believe in what they're helping with.
Q So tell me, who is Dan Backer?
A Dan Backer is an attorney in the Capitol area.
Q That filed two lawsuits against me and lost?
A Actually filed one lawsuit. I filed the other one.
Q But he represented you in both cases.
A Yes.
Q Can you read the title to this?
A Is this evidence? Okay. Weakening Brett Kimberlin
by going after Barbara Streisand, Teresa Heinz Kerry, George
Soss [phonetic sp], and everyone that backs Kimberlin with
financial donations.
Q So the idea was to go after the funders of my
nonprofit?
A I have no idea.
Q But have you ever posted on your blog that people
should not fund my nonprofit?
A I have said that I believe that you use your
nonprofits in ways -- I can explain this. Your nonprofits are
funding --
Q Just answer the question.
A -- your lawsuit abuse.
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Q Just answer the question. Have you --
A I am attempting to.
Q And so you've attempted to have me arrested multiple
times. Am I correct?
A Attempted to have you arrested.
Q I mean, you filed charges to have me arrested? You
asked --
A No. I don't believe the charges would cause you to be
arrested.
Q Have you --
A At most, most, maybe if we're lucky, convicted.
Q But you wanted me to get arrested. You asked that I
be arrested.
A You went to court and --
Q I'm asking you a simple question. Yes or no?
A You committed multiple crimes against me --
Q I'm asking --
MR. OSTRONIC: Objection, your honor. Badgering his
own witness, here.
MR. KIMBERLIN: Yes or no. Have you asked that I be
arrested.
THE COURT: Well, the witness is doing fine.
BY MR. KIMBERLIN
A You have committed multiple crimes against myself --
Q I asked a simple question. Yes, or no.
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A -- and my wife. And so I have sought justice against
you. That is correct.
Q Justice. Okay. And you filed multiple civil charges
against me. Right?
A Civil charges? That's a contradict in terms.
Q Well -- okay. You're casing in Virginia included how
many criminal charges?
A How many criminal -- I do not know.
Q Extortion, harassment, or whatever. There were like -
-
A I don't believe I charged you with harassment.
Q Whatever. -- nobody -- has anybody in an official
position anywhere bought in to your whole narrative, you know,
that I had got you fired, that I'm a pedophile, that I'm a
murderer, that I'm a perjurer, or any of the other things that
you tried to get me arrested for and charged with. Has anybody
ever bought into that?
A Anyone ever believed that that's what occurred?
Q Has anybody ever bought into -- have you ever --
MR. OSTRONIC: Objection, your honor.
MR. KIMBERLIN: Have you ever --
THE COURT: Overruled.
BY MR. KIMBERLIN
Q -- gotten a federal judge, a state judge, a state's
attorney in Howard County, in Carroll County, in Montgomery
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County, anywhere, to say yes, Brett Kimberlin is what you
profess I am?
A Yes. Patrick Fry, for example, a --
Q That's not -- he's not an official. He's a blogger.
Another right wing teabag blogger out in California --
A He is an assistant district attorney --
UNIDENTIFIED MALE: It's Tea Party.
BY MR. KIMBERLIN
Q Tea Party. Yeah. Okay. Another Tea Part blogger --
A Well, I was going to say --
Q -- out in California.
A So, because he's my friend, he's not an official
suddenly?
Q No. I'm saying has anyone in an official position
that you ever filed any charge or any pleading, or any civil
case, ever bought into your lies?
A You're asking if any state or federal official -- yes.
Mr. Fry.
Q No. I'm asking you if anybody that you ever filed
anything with, State's Attorney McCarthy, the Howard County
Prosecutors --
A Filed.
Q -- the federal judge, Amant [phonetic sp], you know,
any of these judges, you know, the ones that you filed here.
The State's Attorney McCarthy that you've been to how many
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times, the police down in Manassas, the FBI that you called and
said that I had bomb materials and pornography all over my home
--
MR. OSTRONIC: Objection, your honor.
MR. KIMBERLIN: -- you know --
THE COURT: Sustained.
MR. KIMBERLIN: Has any of these people ever bought
into this?
THE COURT: The objection is sustained. This is
argumentative.
MR. KIMBERLIN: Okay. I'm -- I'm trying to get to him
to the point. You know. He's called me a murderer and a
pedophile --
THE COURT: Well, you don't get to argue --
MR. KIMBERLIN: -- and nobody has ever bought into it.
THE COURT: The objection is sustained. Anything else
for this witness?
MR. KIMBERLIN: No. No further questions.
THE COURT: All right. Sir, you can step --
MR. KIMBERLIN: I do want to --
THE COURT: -- oh, do you have questions you want to
ask him? No?
MR. OSTRONIC: No, your honor. I think Mr. Kimberlin
asked every question I wanted.
MR. KIMBERLIN: Next witness is --
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THE COURT: Okay. You can step down, sir.
MR. WALKER: Waiting for my leave.
THE COURT: Counsel, can you come up, please?
BEGIN BENCH CONFERENCE
THE COURT: Try to get to the point with this witness
--
MR. KIMBERLIN: I'm going to do this. This is going
to be really fast. Ten minutes at most.
THE COURT: -- they've got enough history here.
MR. KIMBERLIN: Ten minutes.
THE COURT: Okay.
END BENCH CONFERENCE
THE COURT: Go ahead, Mr. Clerk.
THE CLERK: Please stand and raise your right hand.
WILLIAM HOGE
called as a witness on behalf of the plaintiff, having been
first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. KIMBERLIN
Q Please state your name for the record.
A My name is William Joseph Hoge.
Q And you're a blogger?
A Yes.
Q Do you consider yourself under a particular right,
left, progressive, liberal, tea party, anything like that you
^
John
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label yourself?
MR. OSTRONIC: Objection.
THE COURT: Overruled.
BY MR. KIMBERLIN
A I would probably say that I would -- most people would
consider me a conservative.
Q Now, you've heard all the stuff that I've asked Mr.
Walker here in court. How many times do you think he blogged
about me? And tweeted, blogged, anything?
A Well, I did a word search for your name on my blog a
few days ago, and it came up 783 times.
Q Uh-huh. Okay.
A And tweets, probably twice that, because in some cases
when I do a blog, I tweet about a blog post. It goes out twice,
rather than just once.
Q All right. So, when you blog, you tweet, that tweet
goes to these other defendants and many other people. Am I
correct?
A It -- well, it typically goes to the universe because
it's an open tweet.
Q So -- and every day, you have a post called Team
Kimberlin Post of the Day?
A That's one of the features of my blog.
Q Right. And you also have a donate button on your blog
where you can ask people to donate to you, right?
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A I -- actually, it's called the tip jar, but yes.
Q Right. Tip Jar. Uh-huh. Okay. And you started this
campaign called Everybody Blog about the Howard County
Prosecutors. Can you tell us why that was started?
A Yes. The --
MR. OSTRONIC: Objection.
THE COURT: Overruled.
BY MR. KIMBERLIN
A Yes. Mr. Walker and his wife showed me credible
evidence that you had in fact stalked them in the parking lot of
the Howard County District Courthouse in Ellicott City, and when
Mr. Walker and his wife went to stop at the State's Attorney's
Office, they were told by Assistant State's Attorney Brewer that
if they didn't want to be harassed, they should stay out of
Maryland, and that didn't strike me as a responsible way for a
State's Attorney's Office -- whether you're going to no pros the
-- and not follow up on a charge or not, that just struck me as
a very unfortunate attitude for a State's Attorney's Office.
And so I thought they should be held accountable for it.
Q So you started the campaign and had people call them,
and -- how did it work?
A Well, basically, the idea was is that people should
ask the State's Attorney himself if that was in fact his policy.
Q So that's where all this Maryland is for stalkers
kind of --
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A I -- have no idea where exactly that came from. I
have seen that there was a blogger who, for a short time, was --
had on Dazzle, which is one of the Internet sales companies, a
bumper sticker that said that, and it was probably a parody on
Virginia being for lovers.
Q Yeah. All right. So, the State's Attorney in that
case didn't buy into Mr. Walker's, you know, allegation that I
stalked him.
A I'm not -- I am not --
Q They didn't --
A I'm not privy to any of their decisions.
Q And you don't -- did he even try to file charges? Do
you know?
A I'm sorry --
Q Did -- Mr. Walker didn't try to file charges? Did
they --
A You would have to ask Mr. Walker that. I wasn't a
participant in --
Q But no charges came out of that, right?
A So far as I know -- well -- there was an application
for statement of charges --
Q Let's --
A -- that came out, but it was no -- the case was nolle
pros.
Q Uh-huh. Now, so let's get down to the nitty gritty,
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here. You called me a pedophile on your blog, haven't you?
A I've expressed the opinion that I believe you might
be.
Q And you've used the Pedobear meme with my picture
interspersed with it?
A I found it on the Internet, and as a bit of news,
reproduced what I found as image via Google.
Q And so you went ahead and put that out, and -- so I'm
going to just show you this document here. I'd like you to
identify it as coming from your blog, and I've highlighted a few
things in yellow, and --
A This appears to be a jumbled bit of snippets from --
that -- are from blog posts. I don't believe that any of them
are complete and show context.
Q [unintelligible] -- can you read that on that picture?
A This is the dread pedo Kimberlin.
Q Uh-huh. Dread pedo. And the same thing in these
underlined yellow things --
MR. OSTRONIC: Objection. Your honor --
THE COURT: Sustained.
MR. OSTRONIC: Your honor, I'm objecting -- that's not
been authenticated as far as I can tell.
THE COURT: It has not. The objection is sustained.
MR. OSTRONIC: Thank you.
BY MR. KIMBERLIN
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Q Can you authenticate this?
A No.
Q You can't authenticate this?
A No. Not without the complete context of all the blogs
to make sure that nothing's altered.
Q Let me look at those notes. Identified as Plaintiff's
Exhibit No. 19. Comes from your blog?
A I can't -- I can't identify this as being from my
blog. It says it's a page two of something, but I can't
identify it.
Q -- page two from Hogewash.
A It might --
Q That is the name of your blog.
A I have -- that's the name of my Blog, but that would
not be how my -- the way my blog would format a page, so no, I
can't authenticate it.
Q So we were talking about tweets a minute ago. You
said you might have done how many tweets?
A On the order of perhaps two or three per post, so that
would be on the order of 1,500 to perhaps 3,000.
Q So if I handed you this list of all your tweets,
thousands, and thousands, and thousands of tweets, do you think
you --
MR. OSTRONIC: Your honor.
MR. KIMBERLIN: -- identify that?
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THE COURT: Have it marked.
MR. KIMBERLIN: All right.
BY MR. KIMBERLIN
Q Mr. Hoge, have you ever called me a pedophile on your
blog? Let's just assume that --
MR. OSTRONIC: Your honor, is it going to be marked?
THE COURT: This has been marked.
MR. KIMBERLIN: Yeah.
BY MR. KIMBERLIN
Q Have you ever called me a pedophile on your blog or on
twitter?
A I have said that I have reason to believe that you
might be one.
Q Have you ever called me a pedophile?
A I have referred to you as one. Yes.
Q The Everybody Blog about Brett Kimberlin Day, do you
know how many blog posts that generated?
A No. I don't. I do know that I was aware of something
of the order of 250 or 300, but that's probably a tip of the
iceberg.
Q Uh-huh. And if you did a blog search of my name
today, do you know how many -- you did a search on Google, Brett
Kimberlin, plus the word pedophile, do you know how many -- that
would come up?
A I have no idea.
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Q Do you know what Raining [phonetic sp] Six is?
A It's a -- essentially an Internet survey firm, sort of
like a commercial version of Google.
Q So if I were to show you a Raining Six, 40,000 blog
posts about Brett Kimberlin, that wouldn't surprise you, would
it?
A It wouldn't surprise me whether it was true or untrue.
I could believe that that would be true.
Q Uh-huh. Now, you were a party to an email thread
between my wife and Mr. --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: -- Walker. Am I correct there?
MR. HOGE: Possibly --
MR. OSTRONIC: Objection.
THE COURT: What's the basis of the objection?
MR. OSTRONIC: The objection is that he's going back
to Tetyana again, who's not around to talk about it.
MR. KIMBERLIN: No. I'm asking if he was part of that
email thread.
MR. OSTRONIC: He's just asking if she --
THE COURT: The email thread?
MR. KIMBERLIN: Right. You know, there's -- she wrote
an email, they wrote an email --
THE COURT: Well, that's a yes or no question.
MR. KIMBERLIN: Yes. And --
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THE COURT: You can answer yes or no.
BY MR. KIMBERLIN
A I did engage in emails exchanges that involve both of
them, and --
Q And as a result of that email thread, did you
terminate the defense fund that you had raised, or started for
her?
MR. OSTRONIC: Objection, your honor. I --
THE COURT: Sustained.
MR. OSTRONIC: Thank you.
BY MR. KIMBERLIN
Q Did you take any action after you received that email?
A I don't know which email you're talking about, so I --
you would have to show me the email, and then I can tell you
what action I might have taken as a result of it.
Q Now, you with my wife after the hearing. Am I
correct?
A Yes.
Q And as a result of that meeting, you created a defense
fund. Am I correct?
A Not as an immediate result of that meeting. Not our
first meeting. No.
Q Did my wife ever tell you --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
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BY MR. KIMBERLIN
Q Did you stop that defense fund at some point in time?
A Yes.
Q And was that on account of her?
A At her request.
Q And at that time, did she ask you to remove any post
about --
MR. OSTRONIC: Objection.
THE COURT: Sustained. The objection's sustained.
MR. KIMBERLIN: Your honor, it goes to malice.
THE COURT: Well, it's hearsay. He can't testify what
she said. She's not part in this case.
BY MR. KIMBERLIN
Q Did you not remove any --
THE COURT: Did you not remove?
BY MR. KIMBERLIN
Q Did you fail -- did you refuse or fail to remove any
posts after those charges were nolle pros?
A I have only ever removed one blog post that I've ever
put up in --
Q That's not the question.
A -- the three years -- yeah. It's the answer to your
question. I've only removed one blog post that I've ever put up
in my entire three years of blogging so far, and that was the
post for the -- Tetyana's fund, raising money. That's the only
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post I've ever taken down.
Q After those charges were nolle pros, did you take a
trip down to this courthouse and get a certified copy of those
charges, and post them on your Scribd account?
A No. Not this courthouse. They're not kept here.
Q Well, whatever courthouse?
A Across the street. History --
Q But -- so the charges are dismissed, you come down and
get a certified copy, and post them on Scribd.
A Yes.
Q And are those charges -- do you know whether those
charges were not only nolle pros, but expunged and sealed by the
court?
A The charges are not on the Maryland Judiciary Case
Search right now, so I can't tell you what the court may have
done with them.
Q Well --
A I can't tell you what the court did.
Q Did I make a request to you --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: Through your attorney --
THE COURT: It's sustained. This is going to have to
be leading.
MR. KIMBERLIN: Okay.
BY MR. KIMBERLIN
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Q Were you ever requested to remove that document
because it had been expunged and nolle pros?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q So, you have -- have you ever -- have you wanted to
get me arrested? Have you asked that I be arrested?
MR. OSTRONIC: Objection.
MR. KIMBERLIN: Have you ever stated --
THE COURT: Overruled.
BY MR. KIMBERLIN
Q -- on your blog that you want me arrested?
A Not to my knowledge. I have no recollection of ever
saying that on my blog.
Q Have you ever filed charges against me?
A Yes.
Q Tell the members of the jury, what happened to those
charges.
A They were nolle prossed by the Farrelly County State's
Attorney.
Q Right. And you've heard a lot in this courtroom about
charges, and filings, and stuff like that. Do you know what
happens when a citizen like you or Mr. Walker goes to -- and
files with the commissioner that I committed a certain crime?
In other words, you said whatever -- when you filed these
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141


charges that I committed some kind of crime. You know.
Perjury, or harassment, or whatever it was, and do you know the
process that happens once those charges are filed?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Do you know that the police come to a person's house -
-
MR. OSTRONIC: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Have you filed any -- do you know a reporter named --
or an individual named Bill Smallfeld [phonetic sp]?
A Yes.
Q Have you filed 367 --
MR. OSTRONIC: Objection.
THE COURT: Sustained --
MR. KIMBERLIN: -- criminal charges against Bill
Smallfeld?
THE COURT: -- that is the most leading question I've
ever heard.
BY MR. KIMBERLIN
Q Okay. Have you filed any charges against Bill
Smallfeld?
MR. OSTRONIC: I'm still going to object.
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THE COURT: Sustained. You can't tell the person the
answer to the question in the question. That's what a leading
question is.
BY MR. KIMBERLIN
Q Do you know Bill Smallfeld?
A Yes.
Q Have you ever filed any charges against him?
A Yes.
MR. OSTRONIC: Objection.
THE COURT: Overruled.
BY MR. KIMBERLIN
Q How many?
A It's some place north of 360 for multiple violations
of a peace order.
Q So, 367 criminal charges. My question, what were the
results? Simple question. Were they nolle pros?
A At my request.
Q And you -- why did you file -- what got Smallfeld on -
-
MR. OSTRONIC: Objection, your honor. This --
THE COURT: Sustained.
MR. OSTRONIC: -- can't be poppy [phonetic sp]
defamation --
MR. KIMBERLIN: Okay, I'm only trying to show that
these individuals attack anyone. Innocent question. He's a
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reporter. He wrote a story.
MR. OSTRONIC: I objection.
THE COURT: Well, that's not a --
MR. KIMBERLIN: Okay. And what happens?
THE COURT: -- cause of action. It's not a cause of
action whether they -- even if they did that --
MR. KIMBERLIN: It goes to malice.
THE COURT: -- that's not a cause of action.
MR. KIMBERLIN: It goes to malice, sir.
THE COURT: But -- for someone else to be -- no. Ask
another question if you have one.
BY MR. KIMBERLIN
Q So, you've accused me of crimes that I've never been
convicted of. Am I correct?
A That's true.
Q You asked that I be arrested for these crimes?
A No.
Q Okay. You filed charges -- let me ask this. When you
filed charges against me, the caption of that charge reads
State of Maryland v. Brett Kimberlin.
A Yes.
Q And then you -- have you ever taken that charge, that
title, and gone on your blog, or on twitter, and said something
to the effect, State of Maryland charges Brett Kimberlin with,
X?
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A I have reported the fact that you have been charged
with things by me or by other people.
Q So you create the document, you file the charge, and
then you report it as gospel. And then --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: What do you do when --
THE COURT: Sustained. Ask the question, sir.
BY MR. KIMBERLIN
Q Okay. What do you do once those charges are nolle
pros?
A Typically, I write a story discussing the disposition
of the charges.
Q But you don't correct -- do you correct it?
A It's not a correction to say that this event happened,
and then a second event happened. That's not a correction.
MR. KIMBERLIN: No further questions.
CROSS EXAMINATION
BY MR. OSTRONIC
Q I just have one question, and -- on the Bill Smallfeld
bit. Your charges were -- what was the brief disposition of
those?
A Because of -- things were getting so out of hand, at
the suggestion of the Carroll County State's Attorney's Office,
Mr. Smallfeld and I engaged in a mediation session. At the
mediation session, Mr. Smallfeld agreed to abide by the peace
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order going forward. If I was going to get him to abide by the
peace order, there wasn't any reason to go any further, and so I
-- if you're going to do this, then let's dismiss the charges.
MR. OSTRONIC: I --
THE COURT: -- something --
MR. AKBAR: Your honor, I have a couple of questions
for the witness.
THE COURT: Okay. Sure.
CROSS EXAMINATION
BY MR. AKBAR
Q Have I ever instructed you to lie about Mr. Kimberlin?
A No.
Q Am I involved with your blog at all?
A I think you read it from time to time, but that's it.
Q Do any -- does the National Blogger's club, or any of
its directors, tell you to write, or what to write about Mr.
Kimberlin?
A No.
MR. AKBAR: Okay. Thanks.
MR. KIMBERLIN: Redirect --
THE COURT: Are you finished?
MR. AKBAR: Yes, sir.
THE COURT: Okay.
REDIRECT EXAMINATION
BY MR. KIMBERLIN
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Q You've been to events with Mr. Akbar?
A Yes.
Q You've been nominated for awards by the National
Blogger's club for writing about me. Right?
A Yes.
Q You coordinated with Mr. Akbar to raise funds for this
Tetyana defense fund. Am I correct?
A He volunteered to be a contributor. He wasn't
involved in starting the fund.
Q You've been on his radio program. Am I correct?
A He has an Internet radio talk show from time to time.
Q And on that radio program, have you talked about --
MR. OSTRONIC: Objection.
THE COURT: I'm going to sustain it.
MR. OSTRONIC: I'm not sure where this thing's -- yeah
--
THE COURT: It's not redirect.
MR. KIMBERLIN: He's trying to distance himself from
this guy. They're like --
THE COURT: Well, this isn't --
MR. KIMBERLIN: -- two peas in a pod.
MR. OSTRONIC: Objection.
THE COURT: -- redirect.
MR. KIMBERLIN: Yeah. And I'm trying to show --
THE COURT: I know what you're trying to show, but
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it's not redirect. You asked if you could redirect, and this --
the questions that you're asking are not redirect questions.
Sustained.
BY MR. KIMBERLIN
Q Have you ever received any money, any funds at all,
from the National Blogger's Club?
A No.
Q Have you ever given money to the --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: No further questions.
MR. OSTRONIC: Thank your honor.
THE COURT: Thank you. You may step down, sir.
MR. HOGE: Thank you, your honor.
THE COURT: Next witness.
MR. KIMBERLIN: Ali Akbar.
THE CLERK: Please raise your right hand.
ALI AKBAR
called as a witness on behalf of the plaintiff, having been
first duly sworn, was examined and testified as follows:
THE COURT: And spell your last name for the record,
sir.
MR. AKBAR: A-K-B, as in boy, A-R.
THE COURT: All right. Thank you.
DIRECT EXAMINATION
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BY MR. KIMBERLIN
Q Mr. Akbar, have you ever been convicted of a felony?
A Yes.
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: Your honor, I believe it goes to his
honesty.
MR. AKBAR: Going to impeach me?
THE COURT: Well --
MR. OSTRONIC: You called the witness.
THE COURT: What are you impeaching him for? It's
your witness. You're calling your own witness and impeaching
him?
MR. KIMBERLIN: No. I'm trying to show that -- he's a
fraudster.
MR. AKBAR: Objection.
BY MR. KIMBERLIN
Q Have you ever called me a pedophile?
A I believe you're a pedophile.
Q So you admit that you've called me that.
A I don't have a blog or anything like that. I've
called you a pedophile, and I believe you're a pedophile.
Q Okay. So -- but you have a twitter account, right?
A I have a very popular twitter account.
Q Uh-huh. Right. And you also are involved with a blog
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called Bomber Sues Bloggers, right?
A No.
Q You're not. You have nothing to do with that.
A There is no blog that I'm aware of that's called
Bomber sues -- there is a website by the National Bloggers
Club, which is a corporation and an entity unto itself, but I --
and I'm a director for the National Bloggers club, but that's an
entity, and it's not on either side of this case.
Q So are -- do you have a post on Bomber Sues Bloggers?
A No. There's no post on there. Its a static website.
There's no blog on BomberSuesBloggers.com.
Q Is there text on there? Is there information on
there?
A I've observed text on the website.
Q And you've never put it up there. You've never posted
it.
A There are several hundreds of people, journalists,
award winning journalists and bloggers involved with the
National Bloggers Club and BomberSues.com --
Q We're not talking about that. We're talking about
Bomber Sues Bloggers.
A It's a National Bloggers Club initiative.
Q Okay. So you're the head of the National Bloggers
Club, right?
A Yes.
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Q Okay.
A I've been voted in by a board of award winning
journalists and operatives.
Q Uh-huh. So you've raised a lot of money on that site.
A No.
Q You haven't?
A Nope.
Q Bomber Sues Bloggers has never raised any money?
A No. I do a lot of fund raising for charitable
activities, homeless people, the hungry, free speech --
Q I'm asking you a simple question. Have --
A Well, what --
Q -- you ever raised any money on --
A In the context of what I do for a living, no.
Q Has --
A BomberSuesBloggers.com has not been wildly successful.
You are a little known, infamous terrorist.
Q Yeah.
MR. AKBAR: I have to see that, right?
MR. OSTRONIC: Uh-huh.
MR. AKBAR: Your honor, I'm going to object to this,
because I can't authenticate it.
THE COURT: All right. Wait until he shows it to you.
MR. AKBAR: I need to see that.
THE COURT: What's the number of that exhibit.
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MR. KIMBERLIN: This is Exhibit No. 21.
THE COURT: All right. Can you identify that, sir?
MR. KIMBERLIN: You can't identify that --
MR. AKBAR: I cannot authenticate that.
MR. KIMBERLIN: Can you --
MR. AKBAR: And I cannot authenticate this document in
its completeness either. I'm objecting to both.
BY MR. KIMBERLIN
Q Has the National Bloggers Club or Bomber Sues Bloggers
raised any money surrounding me and my name, or any of these
charges, or allegations, or anything?
A The National Bloggers Club is an organization that's
apolitical and --
Q I'm not asking you to give me a mission statement.
I'm asking you --
A All right. What was the question again?
Q -- a simple question. You know -- have you ever
raised, through the National Bloggers Club, or Bomber Sues
Bloggers, or Rally.org, any money for any purpose to deal with
me, my name, or any of these legal issues?
A I'd like to answer no, but clarify, if I may. We've
raised relief funds for bloggers who have lost their jobs,
families who have been attacked, families like mine. My mother
and my brother have been attacked by your blog,
BreitbartUnmasked.com, and --
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MR. KIMBERLIN: I object. I Object.
MR. AKBAR: -- we've raised money. We've raised
relief money.
THE COURT: Well, this is your question. You wanted
to know if he raised any money --
MR. KIMBERLIN: Well, but he's saying it's my blog. I
didn't have a blog.
MR. AKBAR: Breitbartunmasked.com.
THE COURT: You can't -- if you think you're not going
to like the answer, don't ask the question. You asked him if
he'd raised the money --
MR. KIMBERLIN: Your honor, I'm just saying, you know,
he's making a statement that's false.
BY MR. KIMBERLIN
A So, no, we haven't raised any money, you know, to --
for people to blog about you, to attack you, or anything.
Q So how much money have you raised to defend these
bloggers who have been --
A Well, I had to consult lawyers, and that's why we have
never established a legal fund for bloggers against you. There
is no legal fund for bloggers --
Q I'm asking -- you're evading the question. I --
A You asked to defend --
Q -- asked you a simple question. How much money has
the National Bloggers Club and Bomber Sues Bloggers raised --
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A Raised to defend bloggers legally against you? Zero.
Q Against -- we're not talking about against me. We're
talking about raised, you know, to --
A I'm on the other side of that desk, Mr. Kimberlin.
It's against you.
Q Excuse me?
A You said that these weren't bloggers against you. I'm
on the other side of this courtroom. It's against you.
Q So you don't want to answer.
A I'm happy to answer any question you have.
Q I'm asking you about money. How much money?
A National Bloggers Club has raised a ton of money to
support --
Q Exactly.
A -- bloggers and their relief fund.
Q Okay. Good.
A Nothing to do with you. Isn't that funny?
MR. KIMBERLIN: So --
MR. AKBAR: I've objected to this document. I can't
authenticate it. It is incomplete. It is altered --
MR. KIMBERLIN: Your honor, it's Ali Akbar's Twitter
feed.
THE COURT: Well, what's the number of this document?
MR. KIMBERLIN: It's document 22. Plaintiff's Exhibit
No. 22.
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THE COURT: And --
MR. KIMBERLIN: And there's -- you know, there's a
number --
THE COURT: And he's testified that he can't identify
it.
MR. KIMBERLIN: Well, he's testified that he can't
identify it.
MR. AKBAR: Mr. Kimberlin, if you wanted to --
THE COURT: Hold on one second, sir. He said he can't
identify it, so end of story.
MR. KIMBERLIN: So I would like to introduce -- if --
I'm going to ask him simply.
BY MR. KIMBERLIN
Q Did you ever write a Twitter post, ever, on July 27th,
2013, that said Brett Kimberlin is a pedophile who hired cyber
thugs -- hate -- and hired cyber thugs. Hate and retweet about
it. Did you ever --
A I don't recall that tweet in particular, but I believe
that statement to be true.
Q Yeah. Did you ever --
A You've hired -- you have hired people to attack me and
my family --
Q I asked the question. That's it. So did you write a
tweet on July 27th, 2013 --
A I'm not aware of what I wrote on that day --
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Q So we've uncovered Brett Kimberlin's big secret.
He's a pedophile with other pedophiles around his children.
A You have a convicted child pornographer filming your
14-year-old daughter's music videos --
Q Hello --
A -- and you sent him to my party --
Q -- hello. Hello --
A -- at the event that you referenced with Mr. Hoge, to
harass minors that were at my party, Mr. Kimberlin. So I
believe the content of that tweet to be true, too, but I cannot
recall it.
Q Did you, on July 29th, 2013, say that Neal Rauhauser
[phonetic sp] supports pedophile Brett Kimberlin?
MR. AKBAR: Objection. That's a non-party.
MR. KIMBERLIN: Did you on --
THE COURT: Sustained.
MR. AKBAR: Thank you, your honor.
THE COURT: Just for the record, ladies and gentlemen,
this gentleman represents himself, so he's kind of a two-headed
witness. He's representing himself, and he's a witness at the
same time. So that's the reason that he gets away with making
these objections --
MR. KIMBERLIN: Did you on July 31st --
THE COURT: -- as opposed to the previous witness --
MR. KIMBERLIN: -- excuse me.
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THE COURT: -- that didn't get away with it because he
was not representing himself. He was represented by a lawyer --
MR. KIMBERLIN: On July --
THE COURT: -- even though he is a lawyer.
BY MR. KIMBERLIN
Q Excuse me. On July 31st, 2013, did you say Brett
Kimberlin is a pedophile?
A I don't recall what I wrote on that date, because I
had 78,500 Tweets last time I checked, and since I'm a digital
marketing professional, what I want to explain to you is that
tweets aren't thoughts or blog posts unto themselves. They're
usually over a couple of minutes long. So that would -- it
would be an improper metric to assign a tweet, Oh, someone's
tweeted you 300 times. A hundred times. That could be one
thought, Mr. Kimberlin. That's only a couple of words. A
couple of sentences. I'm sorry.
Q Did you have a Blog Talk Radio last night?
A Yes. I did.
Q Did you call me a pedophile?
A No. I didn't.
MR. KIMBERLIN: No --
MR. AKBAR: If you have evidence, I would be willing
to listen to it --
MR. KIMBERLIN: No further questions.
MR. AKBAR: Okay. I --
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THE COURT: Any questions of this gentleman?
MR. OSTRONIC: No, your honor. Not now.
THE COURT: All right, sir. Thank you --
MR. AKBAR: Thank you.
THE COURT: Next witness.
MR. KIMBERLIN: Mr. Stacy McCain.
THE CLERK: Please raise your right hand.
ROBERT MCCAIN
called as a witness on behalf of the plaintiff, having been
first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. KIMBERLIN
Q Mr. McCain, what would you consider your political
affiliation?
A My political affiliation?
Q Yes.
A I'm a conservative.
Q Uh-huh. Would you say a Tea Party conservative, or
moderate conservative, or what?
A I'm a conservative.
Q So, do you know what the Southern Poverty Law Center
is?
MR. OSTRONIC: Objection, your honor.
THE COURT: What does the Southern Poverty Law Center
have to do with this case?
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MR. KIMBERLIN: Well, Mr. McCain --
THE COURT: The Southern Poverty Law Center. What
does that have to do with this case?
MR. KIMBERLIN: Mr. McCain is considered a neo-
confederate --
MR. OSTRONIC: Objection, your honor --
MR. KIMBERLIN: -- and the Southern Poverty Law Center
is --
MR. OSTRONIC: Objection, your honor.
THE COURT: Hold on a second. Counsel, I appreciate
you objecting to my question, but --
MR. OSTRONIC: I'm sorry. I was talking to him.
THE COURT: I'm not going to overrule myself -- that I
did. What does the Southern Poverty Law Center have to do with
this case? I'm not asking you about Mr. McCain. I'm asking you
about why are you asking him about the Southern Poverty Law
Center?
MR. KIMBERLIN: I'm asking him because the Southern
Poverty Law Center is the leading -- one of the leading civil
rights organizations in the --
THE COURT: I understand all that, but what does it
have to do with this case?
MR. KIMBERLIN: Because --
THE COURT: And the claim that you're making against
these gentlemen.
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MR. KIMBERLIN: Right. Because the Southern Poverty
Law Center regularly outs racists --
MR. OSTRONIC: Objection.
THE COURT: Well, so what if they do? What does it
have to do with this case? This case isn't about racists or
racism.
MR. KIMBERLIN: It's about hate. It's about hate.
These people hate me, and they'll do anything to destroy me.
THE COURT: But why are you asking this witness about
the Southern Poverty Law Center? First of all, he couldn't
testify as to anything they said or did because it wouldn't be
an exception to any hearsay rules. So you would never be able
to get that into evidence anyway --
MR. KIMBERLIN: All right. Mr. --
THE COURT: The objection's sustained.
BY MR. KIMBERLIN
Q Mr. McCain, do you have a blog?
A Yes.
Q Do you have a Twitter account?
A Yes.
Q Did you ever publish a blog post -- first I'm going to
hand this to you --
THE COURT: What is that? Exhibit No. 23?
MR. MCCAIN: Yes.
BY MR. KIMBERLIN
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Q First of all, can you read the title?
A The title is How to Get a Million Hits on Your Blog
in Less Than a Year.
Q So let's just cut to the chase here. Point number
four.
A Port number four. Make some enemies. Port number
four. Make some enemies. We'll have none of your bipartisan
civility around here, you sissy weaklings. This here is the
inter-tubes, and we're as nasty as we want to be. The fact that
the moderate voice has turned into a reliable vessel for DNC
talking points should tell you all you need to know about the
fate of bipartisanship in the blogosphere. At the same time,
however, don't confuse cyber venom with real world hate. Maybe
Ace of Spades really would like to go upside Andrew Sullivan's
head with a baseball bat. I don't know. But at some point, you
understand it's just blogging about politics, and you start
wondering if maybe it shares a certain spectator friendly
quality with pro wrestling. For all we know, Ace is spending
weekends at Sully's Beach Shack in Provincetown. A sense of
humor, sir, is not a crime in this country.
MR. KIMBERLIN: Now --
THE COURT: Defaming pro wrestling might be.
MR. MCCAIN: Hey, Jesse Venture sued somebody for --
you know.
BY MR. KIMBERLIN
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Q I just highlighted some things I'd like read. If you
could read those to the jury?
A Okay. Let me see here. Is this from the same thing?
Q Same thing. Yeah.
A No, it's not. Wait a minute. Wait a minute. Let me
back page. Easy as it would -- okay. This is about --
Q Highlighted in red.
A Yes. I see. I see what you're asking me to read,
sir. A couple of days ago, hunting around for a reason to link
my friend Russ Sniss [phonetic sp] spliced today, I happened
upon a column by Russ' young minion, Andrew Sargus [phonetic sp]
Kline. There's the setup. Anyways, he was attacking me or
something. Easy as it would have been to ignore Kline, I hit
upon the delightfully fun idea of laying into him. Arkansas
knife fight mode. If you're going to cut a man, eviscerate him.
So I quickly composed a hyperbolic ad hominem rant with the
thoughtfully civil title, 'Andrew Sargus Kline is an Arrogant
Elitist Douchebag.' I forward dated the post for Friday
morning, and sent Russ an email to the effect of 'Hey, hope you
don't mind me abusing your office help a little bit. Nothing
like a flame war to build traffic. Don't let on to Kline that
it's just funning around with him.' I'd hoped to bait Kline
himself into a response. However, before that could happen, as
if intent on illustrating how to make a fool out of yourself by
taking this stuff too seriously, one of Kline's friends offered
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up a comment. And then it's --
Q Now there's one other part of your How to get a
Million Hits -- and by the way, does your blog have a tip jar
on it --
A Yes. It does.
Q So -- and so pretty much every time you post a blog
post, you say Hit the tip jar, or something to that effect?
A It's at the top of the page. Hit the freaking tip
jar.
Q Yep. Okay. Now, under number five --
A Rule five --
Q Rule five --
A Rule five. Yes. Thank you, sir.
Q C. C.
A Rule five. This is what we call the Christina
Hendricks rule, or Anne Hathaway, or Natalie Portman, or Sarah
Palin bikini pics. Rule five actually combines four separate
principles of blogospheric success. A, everybody loves a pretty
girl. B, mind the meego [phonetic sp] factor. All politics all
the time gets boring after a while. Observant readers will
notice that the headlines at hotair.com, a very popular blog, by
the way, often feature silly celebrity tabloid stuff and news of
the weird. Even a stone political junkie like me cannot subsist
on a 24/7 diet of politics. The occasional joke, the occasional
hot babe, the occasional joke about a hot babe, it's a safety
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valve to make sure we don't become humorous right wing clones of
those moonbats at Democrat Underground. C, the one he wants me
to ask, sex sells. Back when I was blogging to promote Donkey
Cons, buy two -- that was my book I co-authored with Lynn
Vincent, I accidentally discovered something via site meter.
Because the subtitle of the book I 'Sex, Crime, and Corruption
in the Democrat Party,' we were getting traffic from people
Googling 'donkey sex.' You'd be surprised at the keyword
combinations that bring traffic to a political blogger who
understands this. Human nature being what it is, the lowest
common denominator is always there, even if it's sublimated or
reverse projected as puritanical indignation --
MR. OSTRONIC: Objection, your honor. He just -- I
don't know where he's going --
THE COURT: What are you objecting to?
MR. OSTRONIC: I'm just objecting to the fact that
we're reading something for no apparent reason.
MR. KIMBERLIN: I didn't ask him to read it, I don't
think. I said read the little tiny thing --
THE COURT: He said --
MR. OSTRONIC: Okay.
THE COURT: -- C --
BY MR. KIMBERLIN
Q In other words, make enemies and raise money and use
sex to do that. So --
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A Everybody loves a pretty girl.
Q Yeah.
A Christina Hendricks.
Q Now, you -- have you used those things when you're
blogging about me? I'm your enemy, huh?
A You're -- do you hate me --
Q No --
A -- with a passion, sir?
Q I'm saying, you created an enemy, right? Is that what
you're saying?
A No. I'm saying that you attacked me --
Q And then --
A -- you attacked my family, sir.
Q -- my wife --
A You have sicked your friends on my family. Neal
Rauhauser. Who is Neal Rauhauser?
Q I don't know. But let's -- objection.
THE COURT: Ask a question, sir.
BY MR. KIMBERLIN
Q Talking about family, you know my daughter, right?
A No.
Q You don't?
A No. Don't know her.
Q Well, you certainly know that she's 15 years old,
right?
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A You say.
Q You certainly know that she's got a music career,
right?
A You say.
Q My daughter --
THE COURT: This doesn't sound like it's going to be a
question.
MR. KIMBERLIN: It is going to be a question.
THE COURT: All right. What is it --
BY MR. KIMBERLIN
Q Did you write an article --
MR. OSTRONIC: Objection.
THE COURT: Mark it.
BY MR. KIMBERLIN
Q Can you identify this article?
A No. No. This is an altered version. This has
material that's extraneous to the article.
Q Did you write an article attacking a reporter named
Monica Hess [phonetic sp]
MR. OSTRONIC: Objection, your honor.
THE COURT: Sustained.
MR. KIMBERLIN: Challenging.
THE COURT: The objection's sustained.
BY MR. KIMBERLIN
Q Do you know Monica Hess?
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A I don't. I have never met her.
Q Do you know that she wrote an article about my
daughter in the Washington Post?
A No. She wrote an article about you in the Washington
Post.
Q Did you tweet that Monica Hess works for a newspaper
that's hostile to the -- Washington Post?
A Yes.
Q Did you tweet that my daughter is a girl who can't
sing a lick?
MR. OSTRONIC: Objection, your honor.
THE COURT: What's the relevance of that, sir? You
are the party in this case. Not your daughter.
MR. KIMBERLIN: Your honor, these people --
MR. OSTRONIC: Objection to the these people thing.
THE COURT: Well --
MR. KIMBERLIN: Okay. Mr. McCain wants to harm me --
THE COURT: Hold on a second. You are the party in
this case, so I sustain the objection as to any questions having
to do with someone not party in this case.
MR. KIMBERLIN: Well, I just want to ask him if he
wrote this.
THE COURT: You can ask him if he wrote that tweet,
and he can answer that a yes or no.
BY MR. KIMBERLIN
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Q Did you write that tweet? Just that tweet?
A No. That's not -- that's different than what I wrote.
That's not --
MR. KIMBERLIN: Okay --
THE COURT: What is that? Is that number 20? What?
Twenty-four?
MR. MCCAIN: Your honor --
THE COURT: That's okay. It's not in evidence.
BY MR. KIMBERLIN
Q How many times have you written posts about me?
THE COURT: When you say posts, you mean Washington
Post, or post --
MR. KIMBERLIN: No. Blog posts.
MR. MCCAIN: Blog posts. Blog posts.
BY MR. KIMBERLIN
A Well, let's see. From March 17th to July 5th, 2012,
I'm pretty sure I posted daily, so that would have been 42. And
I covered the lead up to the trial involving yourself and Mr.
Walker, and then there was the situation with Mr. Hoge, and Mr.
Smallfeld. But what I'm saying is is that I covered the story
as it's been newsworthy.
Q So if I were to show you 782 tweets that you had --
A I would tell you that only six of those in your hand
that you're showing me were tweeted before you filed this
lawsuit.
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Q Well, if I were to ask you to look at these --
MR. OSTRONIC: Are these all one submission?
MR. KIMBERLIN: I'll put them in as one.
MR. OSTRONIC: Okay.
MR. KIMBERLIN: They're documents as one? Slightly
altered.
BY MR. KIMBERLIN
Q Now, in these -- blog posts -- I'm going to show you
these and just ask you if these -- you recognize any of these.
A Yes. This is about Neal Rauhauser.
Q Does this come from your blog?
A I can't -- I haven't investigated whether -- wait a
minute. Wait a minute. I haven't investigated whether these
are complete documents, okay? But this is about Neal Rauhauser,
this is about Neal Rauhauser, and this is about your association
with Neal Rauhauser.
Q Okay. But these -- your other blog -- what's the name
of your blog, by the way?
A Theothermccain.com
Q So, when you say the other McCain, what are you
referring to?
A My blog.
Q So there's not another McCain.
A What are you trying to say, sir? What I'm telling you
is that I don't know that you've produced the full post
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accurately.
Q Okay.
A But I'm telling you that those are four posts -- the
headlines at least are related to four posts that I wrote about
your associate Neal Rauhauser.
Q Have you tied me to other people, like Mr. Hoge has a
daily post called Team Kimberlin Post of the day, where he says
that there's -- join a team out there. It's --
MR. OSTRONIC: Objection, your honor.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q You do the same thing, and these particular articles -
-
THE COURT: Is this a question?
MR. KIMBERLIN: Yes. It is.
BY MR. KIMBERLIN
Q Do you tie me to Neal Rauhauser?
A You've tied yourself to Neal Rauhauser. You told a
Maryland court that he is your associate. He has claimed you as
his client. Neal Rauhauser has represented your other --
MR. KIMBERLIN: Objection. That's hearsay
MR. MCCAIN: I'm answering your question.
MR. OSTRONIC: Objection.
THE COURT: It's your question, sir.
MR. KIMBERLIN: I know. But --
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MR. MCCAIN: Can I answer the question?
THE COURT: Yes. You may.
BY MR. KIMBERLIN
A Thank you. Okay. Neal Rauhauser, you stood in court
and said that Neal Rauhauser is your associate. He's attended
multiple hearings where he was not a party that you were
involved in. Neal Rauhauser has described you as his client.
Neal Rauhauser represented himself as an agent of your
nonprofit, Velvetrevolution.us. So he is your associate.
Q And was Neal Rauhauser a defendant in the lawsuit that
Mr. Walker filed --
A I think he named him as a defendant.
Q So maybe that's why he was my associate.
A What?
MR. OSTRONIC: Objection, your honor.
THE COURT: Sustained.
MR. MCCAIN: Wait a minute.
THE COURT: No. No. That objection is sustained.
All right. Next question.
BY MR. KIMBERLIN
Q Now, on your postings and your tweets, have you ever
called me evil? The epitome of evil?
A I don't know about the epitome of evil, but I've used
the phrase evil to apply to you several times.
Q And when you tweet, you tweet to the other three
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defendants --
A I tweet to the -- I tweet. You post a tweet to
Twitter.
Q You post a tweet to Twitter, but you direct it --
A I direct -- I CC lots of people on my tweets.
Q Yeah.
A Depending on who's -- who it might be of interest to.
Q And when Mr. Walker Tweets, he tweets to you, right?
A He sometimes CCs me on his tweets. Yes.
Q You've been on radio programs with Mr. Walker.
A I have.
Q You've been on Ali Akbar's radio programs with --
A Yeah. It was Mr. Akbar's program.
Q And then you've been on radio programs with Mr. Hoge
on them.
A He has been on Mr. Akbar's program.
Q And during those radio programs, have you called me
evil?
A First -- may I answer?
THE COURT: Sure.
BY MR. KIMBERLIN
A Okay. The first thing is is that those radio programs
were aired after you sued us. Okay. Do you understand that
this can't be any way relevant to the damages you're claiming?
MR. KIMBERLIN: Your honor, those radio programs --
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THE COURT: Well --
MR. MCCAIN: October --
THE COURT: -- you get a chance to testify. Ask
another question. Your question is has he ever called you evil?
MR. MCCAIN: Sure.
THE COURT: He said he has.
MR. KIMBERLIN: Okay.
BY MR. KIMBERLIN
Q Have you ever called me a pedophile?
A Never.
Q Have you ever called me a sexual abuser?
A Never.
Q A wife abuser?
A Never.
Q Never?
A Never. I have not called you those things.
Q Do you consider yourself like a power blogger?
A I'm about a medium size -- as blogs go, I'm about
medium size.
Q But you get -- you know how to get a million hits, a
million views, whatever --
A My first year -- in 2008, I resigned from the
Washington Times. I went independent, and the post you had me
read from there was in my first year, I got a million visitors
registered by Site Meter on my blog. That's success. I've
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since been -- my total now is 16 million page -- 16 million
visitors, and I don't know. It's over 20 million page views.
Q So it's a pretty substantial blog. I mean,
conservative blog, and everybody knows Robert Stacy McCain, the
other McCain --
A A lot of people know me.
Q Right. So, when you blog something, or you direct
somebody to somebody else's blog, there's some weight, right?
A It depends. I mean, you know, I mean, it depends --
see, readers have their own interests, okay? And, you know, my
job, you know, as a writer, is to figure out, okay, A, what
stories a reader's interested in, and B, is this a story where
my writing about it might have an impact? Does it have a reader
value? The writer has to think in terms of reader value. I've
always taught this, and when I was teaching seminars, think
about the reader. But yeah. So if I -- if you're asking me if
I link another blog, does that help that blog, yes. It -- you
know, whatever source -- if I link the New York Times, I'm
throwing them a certain amount of traffic.
Q So --
THE COURT: Let me stop you again, sir. Right now,
I'm thinking about this jury. Let's give them a break --
MR. KIMBERLIN: I'm trying to get done, you guys.
THE COURT: Ladies and gentlemen, you can step out,
take a 10 minute break.
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UNIDENTIFIED FEMALE: Thank you.
MR. MCCAIN: I can take a break? Like 15 minutes?
THE COURT: Sure. Please remember don't talk about
the case among yourselves or with anyone else. Now, counsel,
come up, please.
MR. OSTRONIC: Your honor --
THE COURT: Mr. Kimberlin, come up.
BEGIN BENCH CONFERENCE
THE COURT: How are we doing?
MR. KIMBERLIN: We're doing good. I'm going to try to
finish up with these guys, and call my daughter --
THE COURT: Now what is your daughter going to testify
to now? Now that we've heard the defendants have all given
testimony. This one isn't finished, but they've all given
testimony. What's the purpose of you putting your 15-year-old
daughter in the middle of this? What's --
MR. KIMBERLIN: She's already in the middle --
THE COURT: What is she going to add to this --
MR. KIMBERLIN: She's already --
THE COURT: What is she going to add to this?
MR. KIMBERLIN: Well, she's in the middle of --
they've attacked her online --
THE COURT: But she's not a party.
MR. KIMBERLIN: She's not a part, but it goes to harm,
and it goes to harm to me, and it goes to malice --
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THE COURT: Well, you can testify about that.
MR. KIMBERLIN: Well, I may not testify. I don't have
to testify.
THE COURT: But I'm not -- I'm very seriously
considering not allowing a 15-year-old child to be put in the
middle of this when nothing she has to say is relevant to what -
- now, if she's -- what you're -- It's not that another witness
couldn't be -- give probative testimony in a case like this.
That's not the case at all. But what I'm saying is that what
you're telling us that your daughter would testify to isn't
probative as to whether these gentlemen defamed you.
MR. KIMBERLIN: Well, it's probative to whether, you
know, my wife --
THE COURT: Your wife's not a party.
MR. KIMBERLIN: No, but they're saying -- that they're
relying on my wife in statements, or, you know, the pleading
filed by Mr. Walker --
THE COURT: Well, the answers to questions -- that
information came in about your wife because of the questions you
asked.
MR. KIMBERLIN: I'm not saying that. You know. They
would have brought it in anyway. You know.
THE COURT: Well, but they didn't.
MR. KIMBERLIN: Okay. Well, they're not done.
THE COURT: Well --
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MR. KIMBERLIN: And --
THE COURT: They might be.
MR. KIMBERLIN: Maybe they are. But my point is --
THE COURT: You're not understanding me, are you?
MR. KIMBERLIN: I do understand you, and I believe
that my daughter has something to offer to this case. This jury
needs to see my daughter.
THE COURT: Why?
MR. KIMBERLIN: Why? Because I'm not a pedophile.
I've never been a pedophile. I've never touched these kids --
THE COURT: Hold on a second.
MR. KIMBERLIN: -- I've never touched their friends --
THE COURT: No one has alleged that you are a child
abuser, which would be the case if indeed someone was involved
in some illicit behavior with his or her daughter. No one has
said that. That's not in this case. That's not been mentioned.
The word pedophile, yes, but no one has said that --
MR. KIMBERLIN: Well, if anybody would know that I'm
not a pedophile, it's my 15-year-old daughter. You know.
THE COURT: Let me just tell you something. You're
going to tell me that kids know everything about their parents?
Please.
MR. KIMBERLIN: Well, I mean, if I'm hitting on their
--
THE COURT: Your daughter doesn't --
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MR. KIMBERLIN: -- friends, or something like that --
THE COURT: -- but no one is saying that.
MR. KIMBERLIN: Well, that's what they said in their
little tweets, you know. We mean to take depositions from --
THE COURT: I mean, to put your daughter up her and --
her testimony is absolutely not relevant to whether Mr. Akbar,
Mr. McCain, or Mr. Walker --
MR. KIMBERLIN: You're saying that that I have to
prove that I'm not a pedophile --
THE COURT: I didn't say that.
MR. KIMBERLIN: That's what they said.
THE COURT: Well, I mean, whatever they say, they can
say, but I didn't say that.
MR. KIMBERLIN: You know, and I --
THE COURT: I'm going to give the jury instructions on
defamation if we get that far, and the jury instruction on
defamation is that -- you know, and I'll just tell you, the
elements are that the defendant made a defamatory statement to a
third person, that the statement was false, that the defendant
was legally at fault in making the statement, and that the
plaintiff thereby suffered harm. I don't see how anything your
daughter has to say goes to that --
MR. KIMBERLIN: Well, in per se defamation, which is a
crime, you know, you just have to show that it's presumed harm -
-
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THE COURT: Well, but that's something --
MR. KIMBERLIN: You know --
THE COURT: -- different from what your daughter would
have to say. The case law says that.
MR. KIMBERLIN: So -- you know, I really want her to
testify --
THE COURT: I know you want her to testify --
MR. KIMBERLIN: And I'm not going --
THE COURT: -- but that's not the basis for receiving
evidence. That the person wants it.
MR. KIMBERLIN: -- I'm not going to keep her on there
for very long. I'm not going to --
THE COURT: Give me a proffer of what she's going to
say about -- that's relevant to the evidence in this case.
MR. KIMBERLIN: She will testify that my wife has had
some mental issues -- and when I say that, you know, based on my
wife's actions, and --
THE COURT: Okay, assume all you win the --
MR. KIMBERLIN: -- and number --
THE COURT: Let's assume they stipulate to that. What
does that have to do with this case?
MR. KIMBERLIN: Well, because they're saying -- their
whole basis for this case is that my wife told the truth --
THE COURT: No. You brought this case.
MR. KIMBERLIN: No. No. They're saying -- their
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whole basis -- for calling me a pedophile online repeatedly for
a year and a half is that my wife made an allegation --
THE COURT: Do you know the witness you really need?
Is your wife here?
MR. KIMBERLIN: She's packing. We're leaving on
vacation tomorrow.
THE COURT: Is she going to testify? See that's --
MR. KIMBERLIN: She's not going to testify.
THE COURT: -- if she was going to testify, that would
be one thing, but a 15-year-old?
MR. KIMBERLIN: No. She -- you know, my wife has some
problems, mental problems --
THE COURT: I won't make you talk about your wife.
MR. KIMBERLIN: -- and, you know, I don't really want
to put her through this. She's been through so much already --
THE COURT: For the record, the jury is -- girls in
the room --
MR. KIMBERLIN: -- so, you know, I would -- that's why
I -- my daughter has suffered. She's been bullied because of
people that have read what these people have said, and that jury
needs to know that. They need to know --
THE COURT: How are you going to prove that? How are
you going to prove that somebody that is at a high school some
place said or did -- first of all, you can't get that in
evidence, and that it is because -- you know, I hear this stuff
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all the time about children, and not just in this case, about
what causes kids to do something, and I've been doing this a
long time, so I'm sitting here wondering how can you separate
out what a teenager does, a 12, 13, 14, 15-year-old teenager,
because of one incident or another, how can you separate that
from just the problems that teenagers have --
MR. KIMBERLIN: Well, because when she's at school and
kids are saying, Wow, I read --
THE COURT: Let me stop you there. How can you get
into evidence what kids are saying?
MR. KIMBERLIN: Well --
THE COURT: That's rank hearsay. It doesn't fit
within any exception of the hearsay rule.
BK: It's what -- well, then I can ask her what
happened with her. In other words, Did someone say something
at school that caused you to be bullied, or not to be allowed to
have any more sleepovers, or not to be allowed to come over to
the house? Why? You know --
THE COURT: And what does that have to do with --
let's just pick Mr. McCain. What does that have to do with Mr.
McCain?
MR. KIMBERLIN: What does that have to do with him?
THE COURT: First of all, he never said you were a
pedophile.
MR. KIMBERLIN: Mr. McCain attacked my daughter
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mercilessly on -- with a blog post --
THE COURT: But there's no evidence that he said that
you were a pedophile. He's testified -- the evidence is that he
never said that. That's his testimony. I never called you a
pedophile. He never said anything about you being a sex abuser
--
MR. KIMBERLIN: No. He used his blog to tie to their
blog --
THE COURT: See, what you're doing is -- I ask you
questions, and you want to give testimony. That's not what I'm
asking. What I'm asking you is what is it that the witness is
going to say that is admissible that goes to the elements in
this charge? In these counts?
MR. KIMBERLIN: Well, first of all, the first one is
that they made a false statement. It's false that I'm a
pedophile.
THE COURT: Of course a daughter is going to come in
and say that her daddy is not a pedophile. That is the most
self-serving comment ever. It's like a mother comes in and says
My --
MR. KIMBERLIN: Let them come and -- let them attack
her and say --
THE COURT: I am not going to let anybody attack a 15-
year-old.
MR. KIMBERLIN: Well -- okay. Then let them --
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THE COURT: I'm not going to let them attack a 15-
year-old.
MR. KIMBERLIN: -- then let them do that in final
arguments. Say --
THE COURT: You know --
MR. KIMBERLIN: Oh, she'd say anything for her dad.
You know. But, you know, she deserves to testify. She wants to
testify. These guys have caused our family, you know, years of
grief and caused her suffering --
THE COURT: But you haven't -- there's nothing before
this court about damage to your family. That's what you're not
seeming to understand.
MR. KIMBERLIN: Well, I have to show harm.
THE COURT: There's only two counts left.
MR. KIMBERLIN: I --
THE COURT: To you.
MR. KIMBERLIN: All right.
THE COURT: Not to your family.
MR. KIMBERLIN: Fine.
THE COURT: To you.
MR. KIMBERLIN: If they portray me as a bad father,
which they've done --
THE COURT: No one has said you were a bad father.
MR. KIMBERLIN: Oh --
THE COURT: That's not in evidence.
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MR. KIMBERLIN: If they portray me as an unfit father
who's abusing my wife, I mean, Kelsie can testify that I've
never abused my wife.
THE COURT: She can't.
MR. KIMBERLIN: Well, but she's never seen --
THE COURT: She's --
MR. KIMBERLIN: -- me abuse my wife.
THE COURT: No one says she has.
MR. KIMBERLIN: Well, but she's the person that lives
in the house. She sees us every day. She knows what kind of
father I am. I -- you know, this jury has a right to hear that
--
THE COURT: First of all, I'm not going to allow her
to give any testimony about your wife's mental condition, about
any treatment, about any therapy. How is she competent to
testify about that? She's not. You don't have an expert
witness to come in here and say he examined your wife, and she's
suffering from X condition because of certain things that -- any
trauma that's related to anything these defendants did. So that
eliminates that bit of testimony. What kind of a dad you are,
first of all, you haven't put your character at issue.
MR. KIMBERLIN: They have.
THE COURT: You haven't.
MR. KIMBERLIN: They called me a pedophile.
THE COURT: You don't get to put any character
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evidence like that -- if you get up on the witness stand and
say, I would never do anything like that, putting your
character at issue, then you can call character witnesses. But
you want to call a character witness when you haven't said a
single thing about your character other than opening statement.
This has nothing to do with you being pro se. These are just
plain rules of evidence.
MR. KIMBERLIN: Well --
THE COURT: See, that would be a neat way to try a
case. Just don't say anything. Just bring in the community and
say what a great guy he is. What a great guy. He's really a
great fellow. And then have the jury concentrate on that as
opposed to the witness him or herself, whether it's plaintiff or
defendant. You know. You know. So that's the problem, here.
See, the problem here is an evidentiary one. It's not -- I'm
sure your daughter wants to testify, but that's not how the
court decides what's received --
MR. KIMBERLIN: I'm sorry.
THE COURT: Yeah. You were covering the mic.
MR. KIMBERLIN: I'm sorry.
THE COURT: That's not how that's determined. You
really want to put a 15-year-old kid in the middle of this?
MR. KIMBERLIN: She's already in the middle of it --
THE COURT: She's not in the middle --
MR. KIMBERLIN: -- they made her in the middle of it.
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THE COURT: -- of this case.
MR. KIMBERLIN: She's in the middle of it. They've
made her in the middle of it. They've attacked her online,
they've attacked her music career --
MR. AKBAR: Stop saying they.
MR. KIMBERLIN: Well --
THE COURT: Well --
MR. KIMBERLIN: -- okay. Mr. Walker, Mr. Hoge, Mr.
McCain --
THE COURT: Well, one person has never -- when you
argue to the jury, you can't say they, because one of these
defendants has said he didn't ever say anything about you being
a pedophile, so he's out of there. This gentleman has said that
he believes you are, so whatever you want to say in response to
him is up to you, and the other gentleman has said that he has
said that, but they're all repeating what they've gotten from
elsewhere. None of these people are the originators of any of
these comments that apparently they have made, and there's no
doubt about the friction between you all. That's pretty -- if
there's anything proven in that case, it's that you all don't
like each other. That's --
MR. KIMBERLIN: Yeah, well, it's defamation. It's not
first amendment. You don't -- you can't lie about somebody.
THE COURT: Well, you know what, a fact can be
anything. What a fact is, or what somebody did, and what you're
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proving in court -- see, you want the jury to make a decision
just because you say it. That's not how it works --
MR. KIMBERLIN: I know. I want them to make a
decision because what they said. They called me a pedophile --
THE COURT: -- you need admissible -- well, they've
said that.
MR. KIMBERLIN: Okay.
THE COURT: I mean, you have used the word pedophile
in the courtroom today more time than anybody has.
MR. KIMBERLIN: Well, I know.
THE COURT: You just keep using it over and over and
over again --
MR. KIMBERLIN: Because that's what they say, and it's
a per se defamation.
THE COURT: But from a strategy point of view, do you
really want to keep saying that?
MR. KIMBERLIN: Well, that's the nexus of this case.
And --
THE COURT: See, this is the problem when people
represent themselves. You can't step back and listen do how it
sounds because you're in it.
MR. KIMBERLIN: Right.
THE COURT: It's kind of like, you know --
MR. KIMBERLIN: Yeah. They've said it how many
hundreds of thousands of times --
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THE COURT: Only the times that you've asked them to
repeat it here in this courtroom --
MR. KIMBERLIN: No. I'm talking about online. You
know. And it gets repeated and repeated, and repeated, and then
other people pick it up, and then other people pick it up, and
it becomes viral. You know. That's the thing. So I would like
to put her on the stand --
THE COURT: Well, I'll allow you to put her on the
stand, but there's probably going to be a barrage of objections,
and if you try to elicit the type of testimony that you've told
the court that you're going to try to elicit, those objections
will be sustained.
MR. KIMBERLIN: Okay.
THE COURT: I mean, she can't give hearsay testimony.
She can give her -- and what is she going to say about her dad?
And then the other thing you have to worry about is what the
jury is going to think of you putting a 15-year-old on the
witness stand. You hadn't thought about that.
MR. KIMBERLIN: Yes, I have.
THE COURT: You know.
UNIDENTIFIED FEMALE: Do you have, like, the post-
verdict sheet?
MR. KIMBERLIN: The post-verdict sheet?
THE COURT: Yeah.
MR. KIMBERLIN: Just --
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THE COURT: Now what counts are left?
MR. OSTRONIC: Three and four.
MR. KIMBERLIN: Three and --
THE COURT: Counts three and four.
UNIDENTIFIED FEMALE: False light and defamation.
MR. OSTRONIC: Defamation and false light.
TC. : Counts three and four.
UNIDENTIFIED FEMALE: Uh-huh. I got it. Thank you
your honor. I just needed to know --
MR. KIMBERLIN: And, you know, the other thing, judge,
you know, we're not just talking about defamation. We're
talking about false light. You know, they presented me as some
kind of heinous monster that does all this terrible stuff.
THE COURT: Right now, the only evidence in the case
is what they've testified to.
MR. KIMBERLIN: Right. And --
THE COURT: That's the only evidence in the case.
MR. KIMBERLIN: Right. And so for them to portray me
as a heinous monster -- that's false light --
UNIDENTIFIED MALE: Do you follow any --
THE COURT: No one is disagreeing with what you're
saying. We're just telling you the evidence that's so far is
only what they testified to.
MR. KIMBERLIN: Well --
THE COURT: -- can identify, and if they can't
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identify it, then it can't be authenticated -- see, here's what
-- These men didn't come in here and say -- you don't have to
prove that they said a thing -- that's not the problem in this -
- A person says I believe you are First president of the United
States. The fact that you're not doesn't have anything to do
with --
MR. KIMBERLIN: I know, but it still happened.
THE COURT: Okay.
MR. KIMBERLIN: -- saying that's the point -- per se,
then they can't say it without --
THE COURT: [unintelligible] -- let me ask you
something. Mr. Kimberlin.
MR. KIMBERLIN: Yes.
THE COURT: Don't want to have ex parte
communications. So, she's your last witness --
MR. KIMBERLIN: [unintelligible]
THE COURT: And I don't know, but I suspect they're
not going to ask her any questions.
MR. OSTRONIC: I'm going to waive my objection --
that's fine.
THE COURT: I mean, she's your daughter.
MR. KIMBERLIN: Okay. Thank you, your honor.
END BENCH CONFERENCE
THE COURT: Remain seated, please.
(Recording paused.)
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(Recording resumed.)
THE COURT: Thank you. Have a seat, please. Bring in
the Jury, please, Mr. Coleman [phonetic sp]. Is Lee finished
with evidence? No?
MR. OSTRONIC: Mr. McCain -- I just had a couple of
other questions, and I think Mr. Akbar wants to ask a few.
THE COURT: Okay. Is that a real couple, or a
lawyer's couple.
MR. OSTRONIC: Real couple.
THE COURT: Okay. All right.
MR. AKBAR: You ask him, I'll ask him.
THE COURT: Sir, you can come on up. Thank you.
MR. MCCAIN: Just trying to get comfortable, here.
THE COURT: All right. Counsel.
BY MR. KIMBERLIN
Q So we were talking about the way the blog works, or --
the article you've written, or you've written an article that
somebody posted in another blog, and you have a link to it, and
you tweet that link to somebody else and spread the word, get
more traffic. Is that what I heard you say?
A You're saying when I link something or I tweet
something, does it result in traffic to whatever I link? That's
true.
Q And if somebody links to you, does that result in more
traffic to your site?
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A Certainly.
Q And when you link to other sites, including the
defendant's, it actually becomes like a viral situation. It
could go viral on the Internet.
A Some things go viral.
Q And you have -- you're involved with another blog
called Viral Read. Am I correct?
A In march of 2013, I was asked to become editor in
chief of a site called Viral Read.
Q And Viral Read, have you published anything on Viral
Read about me?
A Yes. I have.
Q And on Viral Read, have you called me evil?
A I don't know that I have.
Q But you have on The Other McCain.
A Yes. That's my personal site.
Q And when you wrote the tweets and posts about Monica
Hess, was the whole reason for writing that -- those tweets and
posts to attack her for writing a positive article about me?
MR. OSTRONIC: Objection.
MR. KIMBERLIN: I'm just trying to get --
THE COURT: Overruled.
MR. OSTRONIC: Okay.
MR. KIMBERLIN: -- a motivation.
THE COURT: Overruled.
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MR. OSTRONIC: Okay.
BY MR. KIMBERLIN
A Okay. My purpose, if you're asking why did I tweet to
Monica Hess, in 2007, she wrote an article about you that was
very positive, and included, if I recall correctly, exactly two
sentences about your criminal record. And I felt that in July
2013 that the Washington Post should cover the story that I was
covering at the time.
Q So when you wrote that post, and I'd like for you to
just read it just from here. Just read it --
THE COURT: Is it marked?
MR. KIMBERLIN: It's Plaintiff's Exhibit No. 24.
THE COURT: Plaintiff's Exhibit No. 24?
BY MR. KIMBERLIN
Q Just read there to there.
A The Washington Post is a disgrace to journalism that
employees hired liars like Monica Hess. The Washington Post and
Monica Hess are engaged in a conspiracy to conceal the truth
about Brett Kimberlin. In 2007, Monica Hess did not tell the
truth about Brett Kimberlin. In -- reading this, I'm going to
get my glasses here. Hang on a second. Okay. To finish. I'll
begin the sentence at where I -- In 2007, Monica Hess did not
tell the truth about Brett Kimberlin. In 2013, she will not
tell the truth about Brett Kimberlin. The truth about Brett
Kimberlin has never been printed in the Washington Post, nor
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will it ever be. No honest person would work for the Washington
Post, which publishes only evil lies.
Q Thank you.
A Would you like my opinion of the New York Times?
Q No. So, are you aware of another article in the
Bethesda Gazette about me and my daughter?
A I don't know. Is there a publication called the
Bethesda Gazette?
Q Or the Montgomery County Gazette, or something to that
--
A There is a gazette in Montgomery County. Yes.
Q Are you familiar with another article that was
published last -- I believe it was last year, or two years ago,
about me and my daughter?
A I am aware that there was an article published about
you and your daughter in the Montgomery Gazette. Correct.
Q And did you tweet about that at all?
A Someone tweeted to me about it.
Q And is that when you tweeted that By the way, that
girl can't sing a lick?
A Do you want to get the actual tweet in the record? Do
we want to know what actually happened? Yes. I -- Okay --
MR. OSTRONIC: Objection.
THE COURT: He's -- they're he questions, and he can
ask whatever question he chooses --
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MR. OSTRONIC: Objection, your honor. If there is a
tweet out there, can he bring it forward? Otherwise -- I'm
sorry.
THE COURT: He can ask you a question if he wants, and
you can bring whatever tweets you want to bring up as long as we
don't get tweety in here.
BY MR. KIMBERLIN
A Okay. I -- my reaction to a tweet that -- somebody
tweeted the article to me. My reaction was Creeptastic. By
the way, that girl can't sing a lick.
Q Okay. And then did you also tweet that Perhaps Pat
[phonetic sp] Stranahan [phonetic sp] and that WJJ hoe can
communicate facts to hired liar Monica Hess?
A Did I tweet that? Are you showing me a tweet? Okay,
let me state for the record that this is not -- this is -- what
this is from -- can I make the point this is from the site
Breitbart Unmasked. Do you agree?
Q I'm just asking you a simple question --
A No. No. You're showing me something from another
site that you are accused of owning.
Q No. I'm asking a simple question. Did you tweet --
MR. OSTRONIC: Your honor, I'll object. It's an
unauthenticated document.
THE COURT: Sustained.
MR. KIMBERLIN: No further questions for this witness.
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THE COURT: Any questions?
MR. OSTRONIC: Do you have any questions?
MR. AKBAR: I have questions, your honor.
THE COURT: All right.
MR. OSTRONIC: Make sure it's on point. Got to --
MR. AKBAR: May I use this desk?
THE COURT: Sure. Also you -- yeah.
MR. AKBAR: Try to avoid whatever this is.
CROSS EXAMINATION
BY MR. AKBAR
Q You've got a colorful personality, don't you?
A Some people might say.
Q Are you a racist?
A No.
Q Do you come up from a white only family?
A No.
Q Do you associate only with white people?
A No.
Q Okay --
MR. KIMBERLIN: Your honor --
MR. AKBAR: Is the National Bloggers Club --
MR. KIMBERLIN: I object --
THE COURT: You object to whether he associates only
with white people?
MR. AKBAR: He called him racist.
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THE COURT: Well, associating only with white people
isn't a crime, but -- overruled.
MR. KIMBERLIN: Okay. Overruled.
BY MR. AKBAR
Q Have I ever told you to write any lies about Brett
Kimberlin?
A No.
Q Has the National Bloggers Clubs, or any of its
directors or members told you to write lies about Mr. Kimberlin?
A No.
Q How many people attend, based off your observations,
the events that the National Bloggers Club throws?
A Hundreds.
Q And have you won awards from the National Bloggers
Club?
A Yes. I have.
Q Can you tell the jury the process by which you and Mr.
Hoge, as he testified, won awards?
A They were voted on by our peers.
Q Not by any party's sole discretion here?
A No.
Q Okay. Before blogging, what did you do for a living?
A I was -- well, my most -- I'm a newspaper writer.
Q And are you familiar what libel is?
A Yes.
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Q And what is your capacity to tell us that you know
what libel is or isn't?
A Well --
MR. KIMBERLIN: Your honor --
THE COURT: You object?
MR. KIMBERLIN: -- that's a legal question. That's a
legal question.
THE COURT: It's not a legal question as to whether he
knows what it is. It would be a legal question if he asked him
to define it, but he's asking him from his point of view what it
is. He can do that.
BY MR. AKBAR
Q I was a reporter, an editor, a columnist, and, you
know, spent decades with the AP style book and libel manual on
my desk. I edited other people's work. I wrote articles. You
know, I had editors over me, and knowing, you know, being able
to spot something that was potentially libelous, you know, an
article, you know, and fact checking articles, and making sure
that we did not libel somebody, that was part of my job.
A Are there any facts or sources that have talked to you
that you haven't published on the Internet knowledge about --
MR. KIMBERLIN: Objection.
THE COURT: Are there any -- say that again. Are
there any?
MR. AKBAR: Sources or evidence that he knows about
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related to Mr. Kimberlin that he hasn't shared with the public.
THE COURT: That he has not --
MR. AKBAR: Yeah. Unpublished.
THE COURT: Overruled. He can answer that.
BY MR. AKBAR
A Yes. Yes. There -- you know, I've talked to a lot of
sources. I've investigated a lot of things --
Q You have a high regard for the truth?
A I do.
Q So you're not a fly by night basement blogger.
A No. I don't have a -- well, we've got a basement, but
I don't blog in it.
Q The first question that Mr. Kimberlin asked you was a
post that you had, how to get a million hits. When was that
written?
A It was written in -- let's see, it's -- was it March
of 2009? I think it was in March. It was February or March of
2009.
Q Had you heard of Mr. Kimberlin?
A At that time? No.
Q Does that post have anything to do with Mr. Kimberlin?
A No.
Q Not rule five, rule four, whatever it is?
A None of it.
Q Okay. Last question. What's your primary source of
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knowledge about Mr. Kimberlin?
A Let's see. Okay. The book Citizen K by Mark Singer
--
Q It's a published --
A -- his authorized biography, the Indianapolis Star,
court documents, and Time Magazine, and other journalism --
Q Are any of these sites bloggers?
A No.
Q Are any of these sites controlled by any of the
defendants here except me?
A No.
MR. AKBAR: Okay. Thank you, your honor.
MR. KIMBERLIN: Redirect.
THE COURT: Redirect.
REDIRECT EXAMINATION
BY MR. KIMBERLIN
Q Mr. McCain, have you ever been accused of being
racist?
A Yes.
Q What was the case?
A A guy named George Archibald who got fired from --
well, he didn't get fired. He quit, and didn't get rehired, and
became angry, and he's -- last time I heard of him, he was at
the bottom of a bottle. An alcoholic. And he became
disgruntled at my editors. And as part of that, he accused me
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of being a racist.
Q So that had nothing to do with you leaving the
Washington Times?
A No. No. I resigned in January 2008 because I had a
freelance project that involved a trip to Uganda.
Q Now, have you ever been identified as a member of the
hate group League of the South?
THE COURT: I'm sorry. What was that?
MR. OSTRONIC: Objection.
THE COURT: Of what group?
MR. KIMBERLIN: League of the South.
THE COURT: League of the --
MR. KIMBERLIN: League of the South. It's like a
offshoot of the KKK.
MR. OSTRONIC: Objection, your honor. This is --
MR. KIMBERLIN: It relates to --
THE COURT: What's that relevant to, sir?
MR. KIMBERLIN: Well, he brought it up.
MR. OSTRONIC: You brought it up.
THE COURT: You brought it up with League of the
South. He didn't bring up the League of the South.
MR. KIMBERLIN: Yeah. He talked about he's not a
racist.
THE COURT: Well the fact that he brought it up
without objection doesn't make it relevant. What is the jury
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going to do with this? They're not here about whether anybody
is a racist or not. Are we?
MR. KIMBERLIN: Well, no. But he's trying to --
RM. : You're white, by the way.
THE COURT: Hold on a second.
MR. KIMBERLIN: He's trying to rehabilitate the
witness by coming up here and saying Oh, you know, you're not
some extremist --
MR. OSTRONIC: Objection, your honor --
MR. AKBAR: Objection.
MR. OSTRONIC: -- he's putting --
THE COURT: Hold on, a second. Hold on a second. I
got this. Okay?
MR. OSTRONIC: I'm sorry. I'm sorry, your honor.
THE COURT: Go ahead. Finish what you were saying.
MR. KIMBERLIN: And I think, you know, the evidence is
pretty clear that Mr. McCain and his history has engaged in a
lot of rhetoric, you can call it, hyperbole, or whatever, about
whites and black and not being able to live with each other,
intermarry, things like this.
THE COURT: So?
MR. KIMBERLIN: So? I'm just saying.
MR. OSTRONIC: I'm going to object, your honor. It's
not in evidence. Sorry.
MR. KIMBERLIN: It's not in evidence. I'm trying to
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get it into evidence.
THE COURT: Well --
MR. KIMBERLIN: Anyway --
THE COURT: -- you started this case off talking about
the first amendment. So what if he did that? I mean, that
doesn't have anything to do with this case.
MR. KIMBERLIN: No. It doesn't.
THE COURT: Does it?
MR. KIMBERLIN: No. It doesn't. Other than the fact
that he's saying he's not a racist. He's the one that asked
that question.
THE COURT: He, being?
MR. KIMBERLIN: Mr. Akbar. He came right up and said,
Are you a racist?
THE COURT: Then he said no.
MR. KIMBERLIN: He said no. And so all I'm saying is,
Have you ever been called racist? You know. Has the
Southern Poverty Law Center found you racist? You know, Have
you been featured on --
MR. OSTRONIC: Objection, your honor.
MR. KIMBERLIN: -- on Hatewatch because you're a
racist? You know, this is what I'm trying to add. And --
THE COURT: Well, I -- but my problem is that I don't
know what that has to do with this case. It's your -- you're
the plaintiff, and -- if everything you said were true, so what?
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It doesn't have a thing to do with this case.
BY MR. KIMBERLIN
Q Let's get back to what Mr. Akbar asked. You've been
around. You know about libel. You -- copy editor, publisher,
all that stuff. You know the fine line, and you testified that
you haven't called me a pedophile.
A I have not called you a pedophile. Have you got any
evidence you want to show the jury that I ever called you a
pedophile? Go ahead. Show it right now. Here.
Q Okay. So the next question is if somebody called
somebody a pedophile, would that be libelous?
A Would that be libelous? If the person was -- you
know, if it's a matter of opinion, it's not a word that I have
used.
Q I'm not --
A That's the point.
Q -- I'm trying to give you some credit here. You're a
smart editor. You're a newspaper editor. You know the fine
line between --
A So what's --
Q -- what's acceptable and what's not. So I'm trying to
get you to tell this jury why you didn't use the word pedophile
and all these guys did?
A Well, because -- I suppose because long years of
experience, and it was not necessary to use the word pedophile
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in order to make the point, let the readers draw their own
conclusion by citing the book, Citizen K, to site articles in
the Indianapolis Star, to cite other evidence, you know, that
was relevant to the thing. In other words, you report the
facts, and let people make up their own minds. It's not my job
to tell people what to think about you. I tell them the facts,
and they make up their own mind. See this is the great thing
about the blogosphere.
You know, 15 years ago, before, you know, the
Internet, and the blogosphere, and stuff like that, if it -- if
the Washington Post and the New York Times and the ABC, NBC, if
those people didn't want to report a story, most people would
never hear about it, right? And if -- you would publish
something, okay, and maybe it didn't make an impact. But now,
if the Washington Post publishes something that is, for
instance, the Monica Hess story, that is incomplete, other
people, including average people that have no special
qualifications, okay? If they see part of the story that's
missing, okay, they can say, Look here. Here's what Monica
Hess didn't report. And Why isn't Monica Hess reporting this?
What is the cause of Monica Hess' bias?
My criticism of the Washington Post is that they
didn't report very important things about you, sir, and these
are -- other people might read, if they read the same things
that I've read, if they've read the same things that other
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people have read, they might use the word pedophile, and
whether or not that would constitute defamation is a matter of
law. But they didn't just make it up out of whole cloth, sir.
There are facts involved in the story.
I'm covering a story. Don't you see that I -- the
story that I originally began covering was the conflict between
you and Mr. Walker. Do you know why I was covering that?
Because it involved Neal Rauhauser. You brought up Neal
Rauhauser. You brought up Neal Rauhauser here, sir. Neal
Rauhauser was notorious as someone who was harassing people
online, and there were people online who were trying to report
about this story that were getting harassed. I was covering
that story.
Q But, you know, that's all fine and dandy, but, you
know, the point is you, Mr. publisher, copyright editor,
Washington Times, great reporter, award winning this and that,
knew you better not use that word pedophile. You better not use
that word pedophilia. You knew it. And --
THE COURT: Is this going to be a question?
MR. KIMBERLIN: Yes.
BY MR. KIMBERLIN
Q So you were careful. But you linked to these guy.
A Linked?
MR. OSTRONIC: Objection. Leading.
THE COURT: Sustained.
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BY MR. KIMBERLIN
Q Did you link --
A Have I linked other blogs? I've linked other blogs.
Q Have you linked to these guys?
A Have I linked --
Q To their blogs? To their Twitter accounts?
A Have I linked --
Q About me?
A When they were covering your hearings, they were
covering the trials, there -- were hearings at which they were
the only witnesses who were writing about them. I linked to
that.
Q So --
A I --
Q Let's just -- let's get a little hierarchy here --
THE COURT: Ask another question.
BY MR. KIMBERLIN
Q A little hierarchy here. You've got -- they've got
blogs, and then you've got a blog, and in terms of hierarchy,
their blog is where on the scale, and where is yours?
A You know, I'm not here to -- you know, what does that
matter?
Q Well, it matters because --
A I have more traffic than their blogs do. Is that what
you're saying?
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Q Yeah. Exactly.
A Okay.
Q You have a lot more traffic than them. Their blogs.
A I've got more traffic than your website.
Q I'm not --
A He -- actually, Mr. Hoge has more traffic than your
website.
Q Whatever. I'm not asking that question. I'm asking
you --
A Well, what are you asking me?
Q I'm asking how the relationship between you and these
three defendants works as far as the Internet so that the jury
understands that when they write a story --
MR. OSTRONIC: Objection --
MR. KIMBERLIN: -- and they write to you --
THE COURT: Sustained.
MR. KIMBERLIN: -- or you write a story and link to
them, that it's just -- it's as if you wrote that story because
you're all in it together.
THE COURT: I'll sustain the objection.
MR. OSTRONIC: Thank you.
THE COURT: It's argumentative.
MR. OSTRONIC: Thank you.
THE COURT: Anything else?
MR. KIMBERLIN: No further questions for this witness.
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THE COURT: Anything?
MR. OSTRONIC: Can I do one --
THE COURT: Okay.
MR. OSTRONIC: One recross. One thing they said.
RECROSS EXAMINATION
BY MR. OSTRONIC
Q Mr. McCain, of everybody in this room right now, who
would you say is your closest friend?
A Ali Akbar.
MR. OSTRONIC: Thank you. That's all I have, your
honor.
MR. AKBAR: May I recross?
THE COURT: Sure.
RECROSS EXAMINATION
BY MR. AKBAR
Q So Mr. Kimberlin tried to impeach you, impeach and say
you were in libel, -- and next you're in libel, and he just
stood before you to try to assert that everybody who's ever used
the p word is somehow now guilty of defamation regardless of
what this jury decides.
A Is that what you saw?
Q I don't know. It looked like he was trying to use me
to attack you guys.
MR. AKBAR: Your honor, I would like to enter this
into the record. It's a book. This record's --
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THE COURT: You have to have it marked. And if you
want, you don't -- if you don't want to mark the book, mark that
bookmark so that the book isn't defaced.
MR. AKBAR: All right.
MR. KIMBERLIN: Your honor, I'm going to object to any
--
THE COURT: Well, it hasn't been offered yet, you know
--
MR. KIMBERLIN: Okay.
THE COURT: Let the clerk mark it. Mr. Clerk, would
you mark that?
MR. AKBAR: Should I approach him first?
THE COURT: Sure. Well, let him mark it first.
MR. AKBAR: Okay.
THE COURT: The clerk knows how to do it. Yeah.
Okay.
MR. AKBAR: -- ten through fourteen.
UNIDENTIFIED FEMALE: Sorry, you --
MR. AKBAR: No. I'm sorry. Three twenty-six through
327. Three twenty-eight through 329. Three oh two to 304.
Three forty to 341. May I approach the witness --
THE COURT: Sure.
BY MR. AKBAR
Q Are you pretty familiar with this book?
A Very familiar.
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Q How many times have you read it?
A Wow. In preparing for trial, I've read through it
three or four times, certainly.
Q Now, I'm going to skip along, and I'm going to save
Mr. Kimberlin the embarrassment, or I'll try, unless this gets
objected to. How many underage girls, or teenage girls, are
referenced in there of having a relationship with Mr. Kimberlin?
MR. KIMBERLIN: Objection. This book is -- the author
of this book is not here. This book is hearsay, and there's no
way that I can object to this.
THE COURT: You just did.
MR. KIMBERLIN: I mean, that I can, you know, cross-
examine anything that this book says.
THE COURT: Any response to that?
MR. AKBAR: I would argue that this is a part -- this
is a book that has not been discredited. Mr. Kimberlin
cooperated with this book. He has not sued the book author and
been successful in trying to take this book apart. This book
has quotes from principally him, it has traditional relationship
that's unique to him inside of it, and this book has been widely
read. It's widely available. You know. The credibility of the
author's not in question. I just want to reference the book --
MR. KIMBERLIN: Your --
MR. AKBAR: -- that Mr. Kimberlin is familiar with.
MR. KIMBERLIN: Your honor, Mr. Akbar doesn't know
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what he's talking about. The author in this case, Mark Singer -
-
THE COURT: Well, you don't have to say that. The
problem here is that it's not that the book would not be
admissible. It's that it wouldn't come in through this witness.
So I'll sustain the objection.
MR. KIMBERLIN: Exactly. Thank you.
BY MR. AKBAR
Q In your reading of the book, how many girls 18 or
under are referenced in having a relationship with Mr.
Kimberlin?
A Three.
Q Has anyone else read this book other than you?
A Many people.
Q To your knowledge, who in this room owns a copy of
this book? Your personal knowledge?
A You, Mr. Hoge, Mr. Walker --
Q Are those the three people who are accused of using
the p word in relation to Mr. Kimberlin?
A Yes. They are.
Q Okay. Now here's the kicker. Did anybody, to your
knowledge, use the p word before his wife accused him of it?
THE COURT: For the record, you have to say what the p
word is.
MR. AKBAR: Pedophilia. Pedophile.
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BY MR. AKBAR
A No.
Q So everyone knowing that he had strange relationships
with little girls didn't even say that he was a pedophile until
years, or a year later, when his wife called him one?
A Well, I don't know that she called him a pedophile,
but she filed charges of third degree --
Q Did you have a conversation about -- with her about
the age she was when she had sexual --
MR. KIMBERLIN: Objection.
THE COURT: Sustained.
BY MR. AKBAR
Q Did you -- are you aware of the charges that she
pressed against him?
A Yes.
Q What was the charge?
A Sexual assault, third degree.
Q Are you aware of any details in that report as a
journalist who --
MR. KIMBERLIN: Objection.
THE COURT: Sustained.
BY MR. AKBAR
Q Your oldest daughter. Is she married to a white guy?
A She's married to an Argentine.
MR. AKBAR: Thank you, your honor.
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MR. KIMBERLIN: I have a couple of questions.
THE COURT: Okay.
MR. KIMBERLIN: Sorry.
REDIRECT EXAMINATION
BY MR. KIMBERLIN
Q That book that was referenced, none of those quote
relationships had anything to do with sex.
MR. OSTRONIC: Objection.
MR. AKBAR: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Do you know what the result of the charges that were
filed by my wife were?
A She left the state and dropped the charges.
Q So you don't know whether or not they were nolle pros?
A I've been told that. I've heard that here today.
Q Okay. And was there any investigation of that -- of
those charges by --
MR. OSTRONIC: Objection, your honor.
MR. KIMBERLIN: -- anybody that you know of?
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Did you write any article, or did you see any article
by any of these men, defendants, after those charges were
dropped, that said that they were nolle pros?
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A I don't know what I've saw. I mean, you know, I read
a lot of articles, obviously --
Q Did you write a story saying --
A Have I --
Q -- Gee, Brett was falsely accused. Oh my god. I'm
so sorry. You know --
MR. OSTRONIC: Objection.
MR. MCCAIN: You weren't falsely accused.
THE COURT: Overruled.
BY MR. KIMBERLIN
A Nolle pros does not mean you were falsely accused.
I've had traffic tickets that were nolle pros. That didn't mean
I wasn't going 85 miles an hour.
Q But there's no conviction for pedophilia.
A Pedophilia's not a crime.
Q What is pedophilia --
A Pedophilia is a sustained pattern of sexual -- deviant
sexual interest in minors.
Q In minors. Who do you define as a minor.
A Someone under the -- well, in -- it could be under the
age of 17. It depends on the state and the, you know, the
charges involved. But it has to do with a persistent pattern of
interest. Okay? It's not just a one-off. Okay? In other
words, that it's possible that -- for example, I'll give you an
example, is that the director, Roman Polanski, was accused of
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having sexual relationship with -- you know, a sexual activity
with a 13-year-old girl. Okay? But this was one incident. Now
this has been very controversial. It's been debated in columns
and articles and stuff like this, the Roman Polanski case. You
know, Whoopi Goldberg on The View said it's not rape-rape, and
that created a big controversy because it was statutory rape.
But the question is has it been a repeated pattern. Has Roman
Polanski been linked romantically to other underage girls? And
I don't know that he has.
Q So you're justifying the label of pedophile because
I had --
A You asked me for the definition of pedophile. I
just gave it to you.
Q -- but I'm trying to get to the nitty gritty here.
You know. I married my wife. I had sex with her. I have two
kids with her.
A No you don't.
MR. OSTRONIC: Objection, your honor.
MR. AKBAR: Objection.
MR. OSTRONIC: He's testifying now.
THE COURT: I sustain the objection. You can't ask
questions -- was that going to be a question?
MR. KIMBERLIN: No further questions.
THE COURT: All right. Thank you. You can step down,
sir.
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MR. KIMBERLIN: I'll call my daughter.
THE COURT: Is she your last witness?
MR. KIMBERLIN: Yes.
[HUSHER ON]
[HUSHER OFF]
THE CLERK: Please stand and raise your right hand.
KELSIE KIMBERLIN
called as a witness on behalf of the plaintiff, having been
first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. KIMBERLIN
Q Please state your name.
A Kelsie Kimberlin.
Q Kelsie -- how old are you?
A Fifteen.
Q You're my daughter, right?
A Right.
Q Do you have a music career?
A Yeah. I do. It's in Nashville Tennessee, basically -
-
Q Speak up. Speak up a little bit.
A It's in Nashville Tennessee. I work with a guy named
Bernard and a bunch of other people, and Denise. I have a
lawyer. And Taylor Swift has been involved with me, and she's
been retweeting some of my videos. So.
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Q So, are you considered, like a child prodigy? I mean,
you play multiple instruments?
A Yeah. I play banjo, guitar, ukulele, piano, and I
also have a YouTube that has over half a million hits.
Q And so, in your capacity as a musician, who's been
your producer?
A You.
Q And you just mentioned that you're represented by
attorneys in Nashville. Have you been to Nashville?
A Almost every single month.
Q And have you had showcases in Nashville?
A Yeah. About every year.
Q And so you got a lot of notice from big people in the
industry?
A Yes.
Q Now, you said Taylor Swift tweeted your fist video?
A Yeah.
Q And what happened with that happened? Did your video
go viral?
A It was already pretty big, but it got even bigger.
That explains.
Q Okay. Now, last year, you -- let's just go back a
little bit. 2008. You were working with your children's choir.
What was the name of that choir?
A Harmonic Angels.
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Q Harmonic Angels. And Yoko Ono was involve with a
peace project. And how did you get involved with her and the
peace project?
A Well, I basically sent out a -- well, I basically
joined this thing called Legos, and I wrote something about
Click. Earn money -- how do I explain this? Let me explain
this better. Okay. So it started out with I joined a choir,
and then my dad helped out, and we worked with his nonprofit and
others to get young people involved with music and voting, and
to, like, stop the war. And so then we all sang a song. And
then I wrote a -- wrote like a letter to this company called,
like, Legos, and then I got a lot of money from them, like
$5,000 --
Q Was it called the creative nation award?
A Yes. Sorry. Forgot the name.
Q Okay. And so you submitted something for the creative
nation award prize. And what was the top prize?
A It was the $5,000.
Q $5,000. And who won that prize?
A Me.
Q When you won that prize, did the Washington Post write
about you?
A Yeah.
THE COURT: Just for the record, you're answering
questions affirmatively. Just say yes.
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MS. KIMBERLIN: Yes. Okay. Sorry.
THE COURT: All right. Thank you.
MR. KIMBERLIN: She's a teenager.
BY MR. KIMBERLIN
Q I'm just going to -- and I'm going to show you
Plaintiff's Exhibit No. 6. Does that look familiar?
A Yeah.
Q So --
A Yes.
Q Yes. So this is an article talking about -- and it
was written by -- who's that?
A Monica.
Q Monica Hess. Right? And so how old were you when
this happened?
A Well, eight.
Q You were eight when you got the --
A Well, 2008. Eight.
Q -- $5,000 top prize. Tell me, what did you do with
that money? Just spend it on clothes, or --
A I spent it on my music. To learn piano and guitar and
get better at singing.
Q And did you take lessons through the International
School of Music?
A Yes.
Q And are you still taking lessons?
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A Not from the international school of music, but now I
have my own private teachers that come to my house and work with
me.
Q Okay. And so you love music, right?
A Right.
Q It's your life. Right?
A Yes.
Q And that helps with that, right?
A Yes.
Q How often do you spend in the studio? I mean --
A About 10 hours a week or more.
Q Now, about two years ago, you had an opportunity to go
off to camps all summer. What did you chose to do?
A I chose to stay at the studio and work on my career.
Q Now, a couple of years ago, a girl died -- was killed.
Her name was Rose.
A And Liz.
Q And her friend Liz. Can you tell the jury about that?
A Well, actually --
THE COURT: Plaintiff -- hold on a second, sir.
What's the relevance of this to this case?
MR. KIMBERLIN: I'm getting there. It's just taking
me a minute. I just wanted to explain.
BY MR. KIMBERLIN
A So, I have a friend named Emma who had a cousin named
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221


Rose, and her -- Rose's best friend was named Liz. And it was
in Baltimore. Ellicott City. And by train tracks, and cold
buried them, and they got killed. And so --
Q The train derailed, and then cold came --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: Okay.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q So, did you do anything as a result of that?
A So I wrote a song about it, and it got picked up by
someone, and they wanted to write an article about it.
Q What was the name of the song? Do you remember?
A I don't even remember.
Q Diamond's Driver.
A I have too many.
Q Diamond's Driver.
A Yeah.
Q And so, the local paper picked it up. The gazette.
Is that right?
A Yeah. Yes --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: Yes.
THE COURT: Sir, you're going to be leading the
witness. Sustained.
MR. OSTRONIC: Yes, sir.
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222


MR. AKBAR: Your honor, this is nothing that the
defense was given. This is not a copy of anything the defense
was given in discovery.
THE COURT: Okay. Mark it. I'll consider that as an
objection. Overruled.
MR. KIMBERLIN: Can you read the title to the jury?
THE COURT: What is it?
MR. KIMBERLIN: It's a --
THE COURT: No. You're not the witness.
MR. KIMBERLIN: Oh. What is that?
THE COURT: What is that?
MS. KIMBERLIN: Well, it says --
THE COURT: No. No. Is it a newspaper article, a
wedding invitation? What?
MS. KIMBERLIN: It was a newspaper article that
someone wrote on me.
THE COURT: Okay.
MS. KIMBERLIN: And that --
BY MR. KIMBERLIN
A So -- it says Video from Local Singer Kelsie
Kimberlin. Fifty thousand views on YouTube. Keep going?
Q Tell me, did anything happen after that article came
out? I mean, you were proud of that article, and --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
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BY MR. KIMBERLIN
A I don't remember his name because -- but I do know the
one right there in the tie --
MR. OSTRONIC: Objection. Objection, your honor.
THE COURT: Okay.
MS. KIMBERLIN: And I know --
THE COURT: The objection is sustained.
MS. KIMBERLIN: I know that he --
THE COURT: The one right there in the tie, there are
three people, four --
MR. KIMBERLIN: They're all wearing ties.
THE COURT: -- in this room with ties on.
MS. KIMBERLIN: The red one. That guy.
THE COURT: all right.
BY MR. KIMBERLIN
Q So, did you read a tweet from Mr. Red One --
MR. OSTRONIC: Objection.
THE COURT: Overruled.
BY MR. KIMBERLIN
Q This tweet. Did you ever read that tweet?
A Yeah.
Q What does it say?
A He said I couldn't sing, and then basically -- then
later on, him -- he went on my article, and he trashed it.
MR. OSTRONIC: Objection. It's not a --
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224


THE COURT: Sustained.
BY MR. KIMBERLIN
A Yes.
Q Do you got a lot of bullying.
THE COURT: Sustained.
MR. KIMBERLIN: Did you get a lot of bullying?
THE COURT: Sustained.
MR. OSTRONIC: Objection.
THE COURT: Counsel. Sir, stop leading the witness.
MR. KIMBERLIN: I tried to ask her if anything
happened --
THE COURT: What is the relevance of this to your
cause of action against these gentlemen? Assume for argument
purposes that she answers this question yes. What does that
have to do with you and what they allegedly did? She's not a
party in this case.
MR. KIMBERLIN: Now, you've had a lot of success with
your music --
THE COURT: Are you going to answer me or not? What
does that have to do with this case? What happened to your
daughter, if it happened to her, and she said it did. So what
does that have to do with your cause of action against these --
MR. KIMBERLIN: The relevance is that the defendants
and their --
MR. AKBAR: Objection to the word defendants, your
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225


honor
THE COURT: Overruled. Go ahead. What?
MR. KIMBERLIN: The National Bloggers Club Defendees -
-
MR. AKBAR: Objection. It's a nonparty.
THE COURT: You have a continuing objection under the
rule. That means that you don't have to keep saying it.
MR. AKBAR: Yes, sir.
THE COURT: Yes. Go ahead.
MR. KIMBERLIN: The National Bloggers Club bloggers,
Tea Party National Bloggers Club Bloggers swarmed my daughter's
article.
THE COURT: All right. Assume arguendo they did.
What does that have to do with your cause of action against
these gentlemen that you have sued?
MR. KIMBERLIN: It has to do with harm. It has to do
with malice.
THE COURT: Well, I understand what it has to do with,
but specifically, exactly, to wit, what did what they did, if
they did it, have to do with her. Assume arguendo that let's
say for the purposes of this question that what was written
wasn't very nice. What does that have to do with your case?
BY MR. KIMBERLIN
Q Now, Kelsie, what school did you go to two years ago?
A At -- to Pyle Middle School.
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226


Q And then what school did you go to last year?
A BCC. Chevy Chase High School.
Q And what school are you going to -- I don't want you
to mention the name, but are you going to another school this
year?
A Yes.
Q Is there a reason that you've gone to these different
schools?
A Yes.
MR. OSTRONIC: Objection, your honor. This is --
THE COURT: Come up here.
BEGIN BENCH CONFERENCE
THE COURT: I've asked you this question. What does
that have to do with the cause of action that you have filed
claiming that you, not your daughter, you, were defamed, and
that you were shown in a false light? Now, if she was a party,
and was alleging that they had said things about her, that would
be one thing. But what does she have to do with this?
MR. KIMBERLIN: She was bullied --
THE COURT: Come up.
MR. KIMBERLIN: She was --
THE COURT: Let's assume everything you say is true.
What does that have to do with what you have filed in your
lawsuit? You just can't bring in anything you want to bring in
because --
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MR. KIMBERLIN: Because these guys defamed me and said
I was a pedophile, and it went down to her, and caused her
problems.
THE COURT: But you have no cause of action for that.
That's the problem.
MR. KIMBERLIN: Well -- then I'll --
THE COURT: She's not a party.
MR. KIMBERLIN: I'll stay away from --
THE COURT: Sustained.
END BENCH CONFERENCE
BY MR. KIMBERLIN
Q Where's your mom, currently?
A She's at home, packing for Hawaii.
THE COURT: I'm sorry. At home packing?
MR. KIMBERLIN: Yeah.
BY MR. KIMBERLIN
Q Are you leaving on vacation tomorrow?
A Yes.
Q Who's going?
A The whole family.
Q Who's the whole family?
MR. OSTRONIC: Your honor, I can't hear.
MR. KIMBERLIN: Speak up.
MR. OSTRONIC: I can't hear.
BY MR. KIMBERLIN
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A Dad, mom, me, my sister --
THE COURT: They're going on vacation tomorrow.
MR. OSTRONIC: Thank you.
BY MR. KIMBERLIN
Q And where are we going?
A Hawaii and California.
Q Do we take a lot of vacations as a family?
A Yes.
Q Do you love your mom?
A Yes.
Q Has your mom ever done anything hurtful to you?
MR. OSTRONIC: Objection.
THE COURT: Has your mom ever done anything hurtful to
you? Sustained.
MS. KIMBERLIN: As in hurtful, do you mean like --
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: -- you can't talk about it if they
object.
MS. KIMBERLIN: Oh. I didn't know that.
BY MR. KIMBERLIN
Q Is your mom better now?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
MR. KIMBERLIN: I'm going to show you guys these
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pictures first.
MS. KIMBERLIN: I need to be clear. So if they say --
THE COURT: I'm sorry --
MS. KIMBERLIN: If they say objection, I can't
answer the question.
THE COURT: That's right.
MS. KIMBERLIN: Okay.
THE COURT: Just like on TV.
MS. KIMBERLIN: Okay.
MR. KIMBERLIN: She does watch Netflix. What's that
show you watch?
MS. KIMBERLIN: Drop Dead Diva.
MR. AKBAR: Your honor, just a general objection.
These were not provided to us in --
THE COURT: Just mark them as a group and put a --
MR. AKBAR: And your honor, could I also just ask if
it's bring brought in as evidence that it be date -- we also
learn the date of the photographs, instead of just --
BY MR. KIMBERLIN
Q Just want you to look through these pictures here. Is
that your mom?
A Yes.
Q You?
A No, that's Corinna, Dad.
Q Now, who's Corinna?
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A My sister.
Q How old is she?
A She's 10.
Q Is she in the photo?
A Yeah.
Q Where?
A Right there.
Q And is your grandma in this picture?
A Yes.
Q And is she in the photo?
A Yes --
THE COURT: Do you have any objection to these
pictures?
MR. OSTRONIC: Yes, your honor --
MR. AKBAR: I object if --
MR. OSTRONIC: I do.
MR. AKBAR: We have an objection based on the fact
they weren't part of discovery.
THE COURT: You don't object to the authenticity, do
you?
MR. AKBAR: I don't object to the authenticity per se,
but all I'm saying is it would be nice if we had the date on
there. If she says they're pictures, they're pictures. I'm not
going to --
THE COURT: Are you offering those pictures?
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MR. KIMBERLIN: Am I offering?
THE COURT: Yes.
MR. KIMBERLIN: Well, I mean --
THE COURT: I'll receive them. Are you offering them
--
MR. KIMBERLIN: They're my only copies. I certainly -
-
THE COURT: Well --
MR. KIMBERLIN: -- would like to have --
THE COURT: -- you can deal with that later --
MR. KIMBERLIN: -- I'd like them back.
THE COURT: Are you offering them?
MR. KIMBERLIN: Sure.
THE COURT: I'll receive them over objection. Next
question.
MR. KIMBERLIN: -- Walker.
THE COURT: Well, what's the purpose of that?
MR. KIMBERLIN: Well, I want her to --
THE COURT: I mean, they're nice pictures, but what is
the purpose of -- and it's a nice looking family. So what's the
purpose of her explaining who her family members are? What's
the relevance of that to this cause of action? That's my
question.
MR. KIMBERLIN: Well --
THE COURT: No one's challenging that you don't have a
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family and that you take vacations and go to the beach. That's
not a challenge in this case. No one has stated anything to the
contrary.
MR. KIMBERLIN: No, but they say that my wife --
MR. AKBAR: Your honor, again, the they.
THE COURT: Well, but this -- but none of -- just
because they say, that's not a factor in this case.
MR. KIMBERLIN: So --
THE COURT: So if you're offering the pictures, I'll
receive them, but it's not necessary that she walk through and
explain -- it really doesn't have anything to do with what
you're trying to prove.
BY MR. KIMBERLIN
Q So, Kelsie, are you allowed to go out in front of the
house anymore?
A No. Unless I'm going somewhere like taking the dogs
for a walk, or something.
Q Are you afraid to go out front?
A Not always --
MR. OSTRONIC: Objection.
MS. KIMBERLIN: --but it just depends if I see --
THE COURT: Overruled.
BY MR. KIMBERLIN
A -- any other cars around, and if I don't see any other
people outside.
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Q Do we have security questions around the house?
A Yes.
Q Outside?
A Yes.
Q How many?
A Okay. We have one on the front door, one on the back,
one looking at the house on the back and front, and I think one
on the side, on the other side, too.
Q Have you been scared by any of the actions that have
happened in the last --
MR. OSTRONIC: Objection, your honor. Can --
THE COURT: Sustained.
MS. KIMBERLIN: I can't answer?
THE COURT: I'm sorry --
BY MR. KIMBERLIN
Q Do you feel like any of the things that have been --
THE COURT: This is going to be leading. I can tell.
MR. KIMBERLIN: Okay.
BY MR. KIMBERLIN
Q Have any of the things that have been said on the
Internet harmed you?
MR. OSTRONIC: Objection.
MR. KIMBERLIN: By these defendants?
MR. OSTRONIC: Objection, your --
THE COURT: I will sustain the objection that this
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young lady is not a party to this case. She did not sue these
men. Or you didn't sue them in her name, which would have to be
the case. If a minor child's is bringing a case, it would have
to be brought by her next best friend, who is generally a
parent. And she is not a party in this case.
BY MR. KIMBERLIN
Q Have you read tweets by any of these defendants that
might take the position of --
THE COURT: Sustained.
MS. KIMBERLIN: I can't --
MR. KIMBERLIN: You can't answer that.
BY MR. KIMBERLIN
Q Have any of your friends not been allowed --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: -- to have sleepovers --
MR. OSTRONIC: Objection.
MR. KIMBERLIN: -- come to the house, or be around you
--
THE COURT: Sustained.
MR. KIMBERLIN: -- because of --
THE COURT: That -- absolutely. Hearsay.
BY MR. KIMBERLIN
Q Have you -- has anything happened at school --
THE COURT: You've already asked that question.
MR. KIMBERLIN: Trying to get it into another way.
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BY MR. KIMBERLIN
Q Do you know what a pedophile is?
A Yes.
Q Thanks for --
A Yeah. Yes.
Q Have you ever seen any evidence your dad is a
pedophile?
MR. OSTRONIC: Objection.
THE COURT: She can answer.
MR. OSTRONIC: All right.
THE COURT: Overruled.
BY MR. KIMBERLIN
A No. Not at all.
Q None at all?
A No.
Q How do I --
A My dad hasn't even -- my dad, when he's mad, doesn't
even yell at me. He's never touched me in any way. He has
never touched anyone in my family harmfully.
MR. OSTRONIC: Objection.
THE COURT: Overruled. Anything else? No, you don't
just get to keep going. You have to ask another question.
MR. KIMBERLIN: Okay.
BY MR. KIMBERLIN
Q Have I ever shown any sexual interest in any of your
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friends at any age?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q How about with your sister? She's 10 --
THE COURT: Sustained.
MR. OSTRONIC: Objection.
BY MR. KIMBERLIN
Q You said that I help you with your career. Are you
with me 24 seven, pretty much?
A Besides school, yeah. Yes.
Q Just school? I mean, who takes you to school?
A My school.
Q Who picks you up from school?
A My dad.
Q Who pays for it?
A My dad.
Q Do I take care of your mother?
A A lot, actually. Surprisingly.
MR. OSTRONIC: Objection.
THE COURT: Sustained. Sir, you're going way off
base.
MR. KIMBERLIN: Your honor, I need to let this jury
understand that we've suffered.
MR. OSTRONIC: Objection.
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THE COURT: You need to do whatever you need to do
with admissible evidence pursuant to the rules of evidence and
to the law, and I've allowed you some -- I've given you a long
leash --
MR. KIMBERLIN: You have --
THE COURT: -- I've let you run pretty far out there.
But I'm not pulling you back in.
BY MR. KIMBERLIN
Q Do you want this to stop?
A Definitely. Yes.
Q Is it -- do you think it's hurting you and your
career?
MR. OSTRONIC: Objection.
THE COURT: Sustained.
BY MR. KIMBERLIN
Q Is it affecting --
THE COURT: Sustained.
MR. KIMBERLIN: No further questions.
MR. OSTRONIC: Thank you, your honor. No questions
here, your honor.
MR. AKBAR: None at all.
THE COURT: All right. Thank you. You can either
remain in the courtroom, or you can -- go outside. Whatever you
choose to do. Anything else? Another witness?
MR. KIMBERLIN: I think that I'm done.
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THE COURT: Does that mean the plaintiff rests?
MR. KIMBERLIN: I believe the plaintiff rests.
THE COURT: All right.
MR. OSTRONIC: Your honor, I ask for a directed motion
--
THE COURT: Ladies and gentlemen --
MR. KIMBERLIN: The audience here that I asked as we
discussed earlier --
THE COURT: We'll discuss it. Mr. Foreman, members of
the jury, if you will step out in the hallway. The plaintiff
has rested -- counsel, while they're going out, make sure that
all the exhibits that are marked, whether they were admitted or
not admitted, have to go through the clerk. And Mr. Kimberlin,
you indicated there were some things that you might want back.
I would attain your motion to withdraw those things so that you
can have them back. Any objection?
MR. OSTRONIC: No, your honor.
MR. KIMBERLIN: I'll --
THE COURT: All right. Mr. Clerk, he's committing a
motion to withdraw those photographs. That motion is granted.
He can take those back. All right --
MR. AKBAR: Can I make a motion to withdraw that
wouldn't allow him?
THE COURT: You can, but what would be the basis for
that other than to make the file too bulky for the clerk to
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file?
MR. AKBAR: I think it would be in the plaintiff's --
MR. KIMBERLIN: I have no objection.
THE COURT: All right. You can withdraw.
MR. AKBAR: Thanks.
THE COURT: Now. I'll hear from you.
MR. OSTRONIC: Your honor, well --
THE COURT: Whatever -- or you can step back to the
table. I mean the jury's out of the room. I'll hear from --
THE COURT: Your honor, we've heard the plaintiff's
case. What we haven't heard is a single shred of evidence to
the falsity with the defamation charge or the false light
charge, which is required as an element of the tort, and that
goes for Mr. McCain, Mr. Walker, and Mr. Hoge. In other words,
the Plaintiff, even if everything here was taken at his -- at
face value for him, he still has not proved his case. There's
been no evidence of falsity, really no evidence of harm, and
certainly no evidence of malice. In fact, if anything, the
evidence in here shows that it wasn't -- that the defendant --
anything they wrote about was well-documented and well-
researched, and had a legitimate basis for their opinion, which
they published. This just simply isn't defamation or false
light under the tort. And in fact, one thing for false light,
we have not heard from a single person on Mr. Kimberlin's behalf
that came up here and testified that they think less of him on
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the basis of whatever these three defendants wrote about him.
So there's been no element of harm at all as to false light,
that his reputation has been sullied at all within any community
he wishes to identify with.
THE COURT: All right.
MR. AKBAR: Yes, sir. I'd like to make the same
motion for a directed verdict. There's literally no evidence
for the jury to even consider on defamation, per se defamation,
false light, or any of the other accusations that he references.
In fact, I think he referenced a nonparty, the National Bloggers
Club, more than he referenced me. In his opening, he never
cited me specifically as having said pedophile or murderer,
but on the stand, I testified to such. But again, the jury has
no evidence to, you know, consider, other than the two times I
admitted verbally that, you know, I called him that. I still
believe he's that. He's not proven the falsity of the
accusations that he is a pedophile, and I appreciate the court
letting me go Pro Se.
THE COURT: What do you have to say, sir?
MR. KIMBERLIN: Your honor, this is a clear case of
defamation per se. Shapiro v. Massengill, 105 Maryland
Appellate 743, talks about --
THE COURT: What proposition does Shapiro stand for?
MR. KIMBERLIN: The proposition Shapiro stands for is
that accusing somebody of a crime is defamation per se, and when
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you have defamation per se, you don't have to show specific
damages. Damages are presumed, and that's the law of this -- in
Maryland.
THE COURT: Whats the cite for that case?
MR. KIMBERLIN: 105 Maryland --
THE COURT: 105?
MR. KIMBERLIN: 105 Maryland, 742 Maryland 1995.
Shapiro, S-H-A-P-I-R-O.
THE COURT: Im familiar with that case, its a
Montgomery County case.
MR. KIMBERLIN: In that particular case, they discuss
the distinction between defamation per se and defamation per
quod. And theres a quote In the case of words or conduct
actionable per se, their injurious character is self-evident --
is a self-evident fact of common knowledge of which the court
takes judicial notice and need not be pleaded or proved. So it
says in the law -- the complaint establishes that the statement
was made with malice, which is why I argue --
THE COURT: What evidence is there of malice? You
have the -- let me finish the question so you know what Im
asking. You have people that are reporters in a style of media
now that one of the witnesses testified that didnt exist two,
three years ago. And they are reporting the information back
and forth regarding, not firsthand knowledge that they obtained,
but they are reporting some knowledge from newspaper articles
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and other places. So where is the malice?
MR. KIMBERLIN: The malice is --
THE COURT: I didnt hear any malicious statements
made by --
MR. KIMBERLIN: Okay. They created this -- when I say
they --
THE COURT: You can say they because there are four
defendants.
MR. KIMBERLIN: Well, Mr. Walker created this false
[unintelligible] of my wife. It had her file in it, but it was
false, it never happened. [unintelligible] my wife. And so --
THE COURT: But what evidence is there that any of
these -- that first of all, in terms of false light, tell me how
you can make that argument when you yourself were questioning
the witness, and you said it -- you said it at least two or
three times. You said nobody has ever bought into that, nobody
has ever bought into it. So youre saying that they said bad
things about you, but nobody believed them.
MR. KIMBERLIN: No, I said no judge, no States
attorney bought into it.
THE COURT: Who did buy into it?
MR. KIMBERLIN: Obviously their readers.
THE COURT: How do you know? You cant just say --
you just cant come in -- there are very few things in court
that are obvious. Now youre saying the readers bought into it.
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What evidence is there of that? See, we use evidence in court.
MR. KIMBERLIN: I understand that, but under Shapiro,
the defamatory statement of crime is automatically damaging. I
dont have to prove that theres damage, you know. I wanted to
prove that --
THE COURT: Im talking about the defendants.
MR. KIMBERLIN: Okay, the defendants. Mr. Walker
called me a pedophile hundreds of times, if not thousands,
created the -- used the Pedobear graphic to superimpose my photo
on.
THE COURT: Are you suggesting that a person could
file a lawsuit, just go into a court and say that the defendant
called me a pedophile and rest?
MR. KIMBERLIN: Im not saying that.
THE COURT: Well, then --
MR. KIMBERLIN: Im saying that they called me a
pedophile, it was false, that they did it maliciously, and once
it was --
THE COURT: Well what evidence is there that it was
false?
MR. KIMBERLIN: What evidence that its false? Its -
- when you ask what evidence that its false, its a crime.
They said I committed a crime --
THE COURT: You just said that -- hold on a sec you
just said they called me a pedophile, and it was false. My
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question to you -- well, let me ask you another way -- why did
you say that it was false? I understand that youre saying
youre not a pedophile, but youve only argued that. Who has
testified to that?
MR. KIMBERLIN: Well, Im, you know, Im saying under
Shapiro that its --
THE COURT: And whats the cite for that? Just tell
me the cite. You were way away from your mic.
MR. KIMBERLIN: Its -- maybe I can show it to you.
[unintelligible]. Because it shouldnt be that old of a case.
THE COURT: No, it shouldnt be that old. Its
Maryland -- not Maryland, okay. Okay, but --
MR. KIMBERLIN: But the point is, under Shapiro it
says --
THE COURT: You have your back to the --
MR. KIMBERLIN: If its under Shapiro -- under
Shapiro, if they accuse you of a crime, then its per se
defamation. And under Shapiro, if theres per se defamation,
then you dont have to prove damages. Its automatically
presumed to be damaging. And the malice comes from the fact
that they said I was a pedophile based on quote a filing my by
wife. But when those charges were thrown out nolle prossed,
they didnt correct it, they continued it.
THE COURT: Go ahead.
MR. KIMBERLIN: They continued calling me a pedophile
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after the charges were nolle prossed. They not only did that,
they went out and posted -- Mr. Hoge did -- went out and posted
that the charge was expunged and sealed by the court. They
posted it on the Internet. And Mr. Hoge and Mr. Walker and Mr.
Ali repeatedly said Im a pedophile. There was a man burned
alive last year because he was falsely accused of being a
pedophile.
THE COURT: Well thats not evidence. You cant argue
--
MR. KIMBERLIN: I know, Im not arguing -- I'm just
saying, if this is the kind of harm thats presumed from
accusing somebody of a crime. Case after case talks about
defamation per se and the harm that comes from just calling
somebody a pedophile or a criminal or saying that theyve done
something. And you know, the Supreme Court has ruled on this,
too. I mean, in a similar case, Time, Inc. v. Firestone. In
that case, there was -- it involved a divorce proceeding, and
the newspaper picked up something that was in the divorce
proceeding and tried to argue oh, were just reporting on
something thats in the divorce proceeding. And the Supreme
Court said that thats not right, thats sill defamatory, thats
false. And -- you want that case? Time v. Firestone. And so,
thats what were dealing with defamation per se, and an
automatic presumed --
THE COURT: Why is it defamation per se?
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MR. KIMBERLIN: Because its a crime. Pedophilia is a
crime. Theyre saying I committed a crime.
THE COURT: Wheres the malice?
MR. KIMBERLIN: The malice is --
THE COURT: With respect to each defendant?
MR. KIMBERLIN: The malice is that Mr. Walker created
this crime by counseling my wife to file something that was
false.
THE COURT: Wasnt his testimony that your wife made
those allegations?
MR. KIMBERLIN: No, his testimony was that he wouldnt
answer his involvement in creating and then when my wife --
THE COURT: So youre telling -- so youre testifying
-- or, youre arguing that Mr. Walker came up with the notion
that you were a pedophile himself. He just pulled it out of
thin air.
MR. KIMBERLIN: I agree.
THE COURT: And what about Mr. Akbar?
MR. KIMBERLIN: And Mr. Akbar --
THE COURT: He pulled it out of thin air also?
MR. KIMBERLIN: Yeah. He repeated that I was a
pedophile. He went on his blog, he went on his Twitter account,
he went on his radio program, and said this. And he sent this
out to this national bloggers club group of people and said that
I was a pedophile. So now, you know, you can go on the Internet
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and see Brett Kimberlin and all of the sudden Im a pedophile.
And its a crime. Pedophilia is, like, one of the most heinous
crimes on earth. Im talking about --
THE COURT: Its not a crime. Child abuse is a crime.
Sexual child abuse -- sexual offense is a crime.
MR. KIMBERLIN: Okay, but --
THE COURT: That is the definition of certain kinds of
conduct, its not a crime.
MR. KIMBERLIN: Well, pedophilia, you know, is a
horrible, horrible offense, and if anything its defamatory,
pedophilia is defamatory.
THE COURT: But within the elements of the offense,
which are required to be proven --
MR. KIMBERLIN: Right.
THE COURT: Under Maryland law, to present a prima
facie case of defamation, plaintiff must establish four
elements. One, that the defendant made a defamatory statement
to a third person. Two, that the statement was false. Three,
that the defendant was legally at fault in making the statement.
And four, that the plaintiff thereby suffered hard. So says the
Maryland Court of Appeals, as late as 2007.
MR. KIMBERLIN: Thats in Shapiro v. Massengill, too.
And thats what it basically means off of it.
THE COURT: So what -- are all the elements in this
case -- are all of those factors true? In this case? Do we
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have --
MR. KIMBERLIN: We have the defamatory communication,
which is --
THE COURT: Okay. Do we have that the statement was
false?
MR. KIMBERLIN: We have the statement is false.
THE COURT: And who testified to that?
MR. KIMBERLIN: Who testified to it?
THE COURT: Yes.
MR. KIMBERLIN: If you go on with Massengill v.
Shapiro, if a statement is personally --
THE COURT: I understand what Massengill and Shapiro
said, my question is who testified in this case that the
statement was false?
MR. KIMBERLIN: Who testified?
THE COURT: Yes. What evidence is there that the
statement was false? The question does not suggest -- the
courts question does not suggest that the statement was true,
no. But Im just focusing on what the -- these are the Maryland
civil pattern jury instructions, the instructions that the court
would have to give to the jury that they must follow. And these
just annotations are Offen v. Brenner, which is 402 Maryland
191, for the record, a 2007 case. So what testimony was there
that the statements made by these gentlemen were false?
MR. KIMBERLIN: Its considered false. I dont know
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what to tell you. Youre asking me to prove a negative. I mean
--
THE COURT: Im not asking you to prove anything. Im
asking you who in this courtroom yesterday or today said that
those statements were false?
MR. KIMBERLIN: Your honor, in a defamation case --
THE COURT: You hate answering questions --
MR. KIMBERLIN: No, no, Im just trying to --
THE COURT: Who said it was false?
MR. KIMBERLIN: Who said it was false? They --
THE COURT: Did you want to read this? I mean --
MR. KIMBERLIN: I know what it says --
THE COURT: I didnt make this up. This is Maryland
law.
MR. KIMBERLIN: I think that the jury has to make that
call, whether its false. And whether --
THE COURT: But there has to be some evidence. They
just cant pull things out of the air. A jury, they just cant
go back there and decide what they want to decide. I have to
give them instructions on the law. And the instructions on
defamation -- Maryland pattern jury instruction 12.1 a
defamatory statement is a false statement about another person
that exposes that person to public scorn, hatred -- so nobody
in here, in this case said that they hated you, you havent put
any evidence up that they hated you -- contempt or ridicule --
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theres no evidence of that -- thereby discouraging others in
the community from having a good opinion of or from associating
or dealing with the person. Defamation may result from a
statement communicated to a third person either orally or in
writing. And here you have -- I'll call them, well, bloggers,
I guess theyre reporters -- reporting stories and bantering
back and forth regarding stories that, I think it originated,
the whole thing started back in Indiana many, many, many years
ago. And so what is the jury going to -- how are they going to
consider whether there was public scorn?
MR. KIMBERLIN: Your honor --
THE COURT: Thisll go lot faster if you try to answer
my question. If you dont have an answer, say you dont have an
answer.
MR. KIMBERLIN: Being called a pedophile is
automatically public scorn, I mean --
THE COURT: Look, Im getting -- you've said that, I
understand it. But Im focusing on the Maryland law that I have
to tell the jury. Now what Im asking you -- let's take it one
by one. The statement has to -- you have [unintelligible] to
contempt. Any evidence of that?
MR. KIMBERLIN: Well, I put my daughter on the stand
and she testified that we had suffered --
THE COURT: That she had suffered?
MR. KIMBERLIN: No, that our family had suffered.
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That I had suffered.
THE COURT: Look, youre the only party in this case.
MR. KIMBERLIN: I understand, but youre asking me if
anybody testified about public scorn, hatred, and contempt, and
I wanted to get that in through my daughter.
THE COURT: Well you could testify and you didnt.
Its your choice, nobodys criticizing you for it.
MR. KIMBERLIN: Your honor, its automatic when you
have --
THE COURT: When you say that, could you have just
come in here and say they called me a pedophile plaintiff
rests.
MR. KIMBERLIN: No, I have to prove that they called
me a pedophile, which is what I did. And thats what this case
is about. You know, under --
THE COURT: So what do you tell the jury about
damages?
MR. KIMBERLIN: Well, you tell them that this is a per
se defamation case. That they have to presume damages. Thats
what Shapiro v. Massengill says. I mean, its not something Im
making up, you know, its what this case says. If you file that
this is per se defamation, per se defamation is defined as, and
you define that, and then you say theres damages presumed. And
once those -- they have to go back in the jury, they can fine
him 50 dollars, or they can fine him five million dollars, who
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knows? But its the jury that should decide under the
defamation per se. You know, were not talking about, you know,
a guy saying that I hit his car, and I didnt really hit his
car, and, you know, that I lost my job because of that. I mean,
were not talking about that. Were talking about a sustained
attack on me, and thats where the damage is coming from. So I
think the jury has to find that the statement was false. If
they come back and say oh, the statement was -- he didnt show
the statement was false then thats their purview. That the
defendants were at fault in communicating the statement,
obviously they communicated the statement. They did it
intentionally. That is false. And they did it with malice.
When my -- when the charges were dismissed, they didnt come
back and correct the record and say oh, gee, the charges were
dismissed and were nolle prossed, you know [unintelligible] is
getting medical help or whatever. They didnt do any of that.
They continued, every single day, I mean they created
[unintelligible]. Thats not part of this case, but it shows
its malice. And theyre basing that on a charge that was
dismissed. It was nolle prossed. How can they call me a
pedophile based on something that was nolle prossed? I mean,
Mr. Hoge testified -- or one of them testified that they said I
was a pedophile when they gave a t-shirt to a 15-year-old
daughter of a friend of mine or something. I mean, holy
mackerel. I guess everybody could be a pedophile if that guy --
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And theres a reckless disregard for the truth here. You know,
the jury can be instructed and the jury can make a decision.
And thats what they need to do. They shouldnt
[unintelligible] let the jury come to that. Theyve heard the
evidence, Ive presented my case.
THE COURT: Anything else?
MR. KIMBERLIN: Lets see. Well, like I said, just
going back to the Time, Inc. v. Firestone case --
THE COURT: Does it matter in your argument at all
that theres no such crime as pedophilia?
MR. KIMBERLIN: A pedophile --
THE COURT: Theres sex offenses. First degree sex
offense, second degree sex offense, third degree sex offense,
fourth degree sex offense. Those are the crimes. First degree
sex offense is rape. Second degree sex offense is a type of
rape. Third degree sex offense is not rape. Fourth degree sex
offense is --
MR. KIMBERLIN: Yeah, but there are --
THE COURT: Yeah, but pedophilia is not a crime. You
keep using the word crime. They have not accused you of a
crime. Now do you think your argument would be stronger had
you, in fact, been accused of a crime?
MR. KIMBERLIN: Well, I dont think so. Because
theres a lot of case files there, and I apologize, I dont have
them handy --
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THE COURT: You dont have to apologize, you were
doing the best you could, you dont have to apologize.
MR. KIMBERLIN: But theres a lot of case law out
there where people are called a pedophile and theyve called
this per se defamation. And --
THE COURT: Theres a lot of case law out there in
Maryland where if somebodys called somebody a pedophile, they
held that that was per se defamation?
MR. KIMBERLIN: I dont know if its in Maryland, but
Ive researched this pretty extensively, and there are a lot of
cases where calling somebody a pedophile and -- I'm asking the
clerk to help me out here because I didnt bring those cases --
but there are cases, you know, where that was found to be per se
defamation. And thats what Im arguing here, you know, that
this, whether call it a crime --
THE COURT: Okay, talk about the false light.
MR. KIMBERLIN: False light --
THE COURT: What evidence is there that --
MR. KIMBERLIN: False light is portraying somebody as
somebody who theyre not, you know. I mean --
THE COURT: I understand what it is, but what evidence
is there the portrayal of you with respect to that was false?
What evidence is there?
MR. KIMBERLIN: Because, as my daughter testified, Im
a father, Im a husband --
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THE COURT: No one said you werent. What evidence is
there that --
MR. KIMBERLIN: -- and that Im a producer, a music
producer, and Im engaged in civic participation. She testified
to all that. That is --
THE COURT: Thats not in dispute.
MR. KIMBERLIN: Thats me. Thats me currently. And
false --
THE COURT: What evidence is there that what they said
was false? Evidence?
MR. KIMBERLIN: The evidence --
THE COURT: Who testified that it was false?
MR. KIMBERLING: That the pedophilia was false?
THE COURT: That -- yes, the false light count Im
talking about. Theres no per se false light. So what evidence
is there -- wouldn't somebody have to say these things are not
true?
MR. KIMBERLIN: Well, my daughter, I tried to get that
in through her.
THE COURT: Well, I know you tried to, but Im saying
wouldnt somebody have to say that thats not true?
MR. KIMBERLIN: Under false light, its the portrayal
that the defendants tried to --
THE COURT: But at a trial, wouldnt somebody, some
evidence, somewhere, have to say that wasnt true? Otherwise,
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by your argument, all a person would have to do is go into court
and say things, and then just rest. Give it to the jury.
MR. KIMBERLIN: But thats not what I did. I had
someone testify --
THE COURT: Were talking about false light. Who said
that these things were false? What evidence?
MR. KIMBERLIN: I mean, I feel like youre trying to
get me into a circular argument.
THE COURT: Im not trying to get you into anything
except answering my question. Thats all.
MR. KIMBERLIN: They portrayed me as a pedophile. My
daughter portrayed me as a good father.
THE COURT: No one said you were not a good father.
MR. KIMBERLIN: But they portrayed me as a pedophile.
Thats false light.
THE COURT: There are plenty of people portrayed as
good fathers who were pedophiles, thats got nothing to do with
anything.
MR. KIMBERLIN: But thats false light. If they
portray me as a pedophile --
THE COURT: I think there was a case somewhere just
north of the Mason-Dixon line that got a lot of publicity.
MR. KIMBERLIN: If they portray me as a pedophile or
anything that happened 40 years ago and now Im a music
producer, a father, a director of a nonprofit, and I do all
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these good deeds, you know, thats false light. Theyre trying
to --
THE COURT: Thats a quantum leap in terms of what --
I read to you what the jury instructions require.
MR. KIMBERLIN: And what is the jury instruction on
false light?
THE COURT: Now Im going to hear it from -- false
statement defined by 12.4 of the Maryland pattern jury
instructions. A false statement is a statement that is
substantially incorrect. Minor errors do not make a statement
false if the substance or main thrust of the statement is true.
We dont have any evidence about the statement except the
testimony of the defendants.
MR. KIMBERLIN: And the testimony of the defendants is
that Im a pedophile. And my daughter testified that Im a good
father. So let the jury decide which one it is. But is there -
- they portrayed me one way, my daughter portrayed me another
way. And thats the issue. Its not -- do I have to bring in
all kinds of character witnesses? And so --
THE COURT: All right, what is your responses? Your
motions?
MR. OSTRONIC: Your honor, I go back to my original
thrust. There has been absolutely no proof or evidence entered
that suggests these stories were not false or that the --
THE COURT: You mean are false?
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MR. OSTRONIC: Are false, Im sorry. Are false, yes,
your honor. And all the facts and statements that my clients
made here were always with fully developed opinions. The facts
behinds the opinions, or the opinions behind the opinions, or
the statements behind the opinions were always fully disclosed
so that the reader would always know exactly why my clients were
making any statements they might have made. Your honor, theres
just no evidence of falsity, and again, no evidence of damages,
certainly.
THE COURT: Now these werent opinions, they were
statements of fact.
MR. AKBAR: Your honor, Mr. Kimberlin is a bold liar.
He presented a lot of altered documents and still couldnt prove
his case. He refused to testify after putting this court
through the ringer. The one person who could have suggested
that maybe that it was false that hes a pedophile -- I still
believe hes a pedophile -- he tried to use the Shapiro example
through the Maryland Appellate Court, and that seems like it was
sufficiently debunked.
But, you know, addressing the two points that he
brought up, he said that its a specific crime, if you accuse
someone of a specific crime, then thats automatic defamation
per se. Which would have entitled him, honestly, to a favorable
judgment during motion summary judgment, but it didnt. And not
only that, pedophilia is not a crime, this is something that
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encouraged me to say the word in the first place. I knew he was
a pedophile, I didnt say it until his wife said he was a
pedophile to me.
And even if it was a crime, it wouldnt stop citizens
from alleging to other citizens that there was a crime alleged.
He cites maliciousness, specifically he cited to me that Ali
repeated something that was said was false. This gets me off
if that was the standard. He cites blog, Twitter, and my radio
program. Theres no evidence for the jury to even consider any
of that stuff. He says give it to the jury, let them decide
whether or not they want to follow the law, or whether or not
they believe that Chelsea Kimberlin thinks Im a good father.
These are not mutually exclusive.
And the -- your honor, you referenced Offen v.
Brenner, and he has four points to prove that I defamed him to a
third person. Theres nothing for the jury to even consider
that thats even possible outside of two times I admitted that I
believe hes a pedophile, and that only applies to everybody in
this room. Second, that the statement was false. He never
proved falsity. It is on him to prove that hes not a
pedophile. It is on him to prove that Mark Singer is a liar.
It is on him to prove that Julius Scyphers is a liar. It is on
him --
MR. KIMBERLIN: Objection.
THE COURT: [unintelligible]
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MR. AKBAR: -- to prove that Tetyana Kimberlin is a
liar. It is on him to prove that we were unreasonable. It is
on him to prove that we made these with total disregard for the
truth. Obviously, Im not representing the other codefendants,
but I thought it was apparently obvious that nobody, not even
Mr. Kimberlin himself, alleged that we said, certainly I said,
that he was a pedophile before a statutory rape charge was
filed, which actually is criminal.
So again, if we apply what he thinks Shapiro says, and
it is a crime, and a crime was filed, that entitles us to say as
much. So anyway, theres no evidence for the jury to even
consider. Im positive that the jury would find in our favor --
my favor. And it doesnt even need to get to them because as a
matter of law, he hasnt met the standard that hes dragged us
through 11 months of hell for. Brett Kimberlin is a pedophile.
THE COURT: All right. Gentlemen, please remain
seated. I will be back in just a few minutes.
THE BAILIFF: All rise.
(Recording paused.)
(Recording resumed.)
JUDGES RULING
THE COURT: At the conclusion of the presentation of
the plaintiffs case, each defendant made a motion for judgment,
arguing that there had not been a sufficient and factual
[unintelligible] for a jury to consider the allegations that had
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been made by the plaintiff. The plaintiff in response argues
that hes essentially been defamed, that there is defamation per
se in this case, and that the case should go to the jury. With
respect to the account alleging that the defendants showed him
in a false light, that that is really the easier of the two, and
the court will grant a judgment in favor of the defendants with
respect to that count. Theres not much evidence in this case
that the statements that were made by these individuals were
false.
Now, the court does not find that the statements were
true. We dont have to get there. Its just that there was no
testimony that they were false. Now, the plaintiff in this case
made a trial strategy, and of the record I understand that the
plaintiff is not an attorney, but as I explained to the parties
when this matter started, that we dont have two sets of
rulebooks. We dont have one set of rulebooks for someone who
is an attorney and then another set of rules for a person whos
not an attorney. If you come in to the court, the standard of
proof, the requisite requirements of the rules of evidence and
the rules of procedure apply whether youre a lawyer or whether
youre not a lawyer. I must say parenthetically, and I have no
reason to ingratiate myself to the plaintiff in this case, but
he conducted himself and presented a case that -- as if hes had
some legal training or experience and did a fairly good job, Id
say, presenting the case.
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But there are some technical nuances in this case that
he apparently did not view in a fashion that would lead the
court to rule in his favor. He cited Shapiro v. Massengill,
which is 105 Maryland Act 743, a 1995 case. And that case found
that the determination of whether an alleged defamatory --
alleged defamatory statement is defamatory per se or per quod.
That is a question of law, thats not a question of fact. Now,
if the alleged defamatory statement is per quod, then the jury
must decide whether the statement does, in fact, carry
defamatory meaning.
Now, the plaintiff, during the course of his
presentation, used the term crime when he referred to the fact
that the defendants accused him of being a pedophile. And he
kept saying, throughout the course of his argument that they
accused me of a crime, the accused me of being a pedophile.
Well, that is not a crime in Maryland or any other state that
Im aware of. In a case of Pettit v. Erie Insurance Exchange,
117 Maryland Act 212, a 1997 case, not a criminal case,
obviously, but I do find the case instructive with respect to
what pedophilia is. And Ill read what the court said about
that in pertinent part.
Now, in that case, on page -- its also at 699 A.2d
550 -- and the court said, the pertinent part portions of the
transcript of Kowalskis criminal trial, containing testimony of
Fred Berlin, M.D., Michael Sweda, Ph.D., and Joanna Brandt,
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M.D., including their conclusions that Kowalski is a pedophile
-- and these are doctors, Ph.D. doctors and M.D. -- including
their conclusions that Kowalski was a pedophile, an affidavit of
Neil H. Blumberg, M.D., who upon review of Kowalskis medical
records and the trial testimony of doctors Berlin, Sweda, and
Brandt, concluded that Kowalski suffers from a mental disorder
known as pedophilia. And clearly pedophilia, from the medical
profession point of view and from the psychological profession
point of view, it is a mental condition, it is not a crime.
Now, if an individual who suffers from that condition
takes some steps toward the satisfaction, if you will, of the
urges that a pedophile might have, then its, of course, a
crime, depending upon what degree it might be. But the
condition itself is not a crime. And so the plaintiffs use of
the term pedophilia in one sentence and crime in the next is
misplaced. Now -- and so, another case is instructive on that
issue, as well. In Brodzki v. Fox Broadcasting Company, which
is 868 F. Supp. 2nd 386, a 2012 case. Brodzki is spelled B-R-O-
D-Z-K-I -- v. Fox News. They said, with respect to definition
of pedophile -- or not the definition. What happened in that
case, the plaintiff resided in Richland Hills, Texas. He
alleged that during a Fox football pregame show originating in
Los Angeles, that the Fox broadcasters, Jimmy Johnson and Howie
Long and Terry Bradshaw and Mike Strahan accused him of being a
pedophile.
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In addition, plaintiff alleges that the broadcasters
continually said that he had taken a picture of a young boys --
they quote he had taken a picture of a young boys dong, close
quote. And Johnson said quote you took a picture of a boys
penis? close quote after Long had mentioned plaintiffs name.
Plaintiff alleged that these events, which occurred on September
12, 2010, continued every Sunday through and including December
19, 2010, and he sought 100 million dollars in damages. And
what the court found in that case was that -- and granted motion
in favor of the defendants -- is that he had not satisfied the
requirements of a defamation case for reasons much like I just
cited in the previous case, which was Pettit v. Erie Insurance.
So I suppose the tenor of what the plaintiff was
arguing is certainly understandable, but as I tried to explain
to him during the course of the trial, that these terms and
definitions have specific legal meanings and theyre not
interchangeable. Now, when I talk about the presentation of the
evidence, I dont say it to be critical of either side, but
there was one bit of, well it was actually not evidence, but in
opening statement he discussed something else that was alleged,
but somehow it got lost during the trial and even in his
closing, he didnt focus on this.
He said also that he was accused of being a murderer
and that, in fact, is a crime, but for some reason, perhaps
because of the reasons that he argued, he focused in on the use
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of this term pedophilia, and the allegation that he was a
murderer, which theres no evidence that he is, sort of fell by
the wayside. He didnt argue that and, as I said, I dont say
it to criticize him, but that might have been something that
maybe would have had a bit more grip in this case, had it been
argued. But I suppose it would seem that he focused on
pedophilia because it obviously gems up a greater emotional
response in peoples minds when that term is used, but it is not
a crime. Murder is a crime. Theres no such crime as
pedophilia. The crimes come about when a person who is a
pedophile takes action to satisfy the desire that he or she may
have.
And so clearly there really isnt anything for the
jury to consider. That is not a claim upon which relief could
be granted or should be granted. Ironically, in the Terrain
[phonetic sp] case, Terrain v. Lew [phonetic sp], which is at --
apparently it wasnt reported, but this is just a bit of irony,
that the racism was sort of brought around in that case also,
and thats quite ironic. Apparently there was an allegation
that the defendant at some point in that case called the
plaintiff a racist pedophile and a racist pedophile is no more a
crime than being a pedophile is.
And with all due respect to both sides involved in
this case, it is risky business, defamation is an extremely
difficult case to prove. Going all the way back to New York
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Times v. Solomon and the cases that followed -- and I havent
seen New York Times v. Solomon for a while, so the cite of
that case escapes me, but its a good place to start in terms of
understanding what the requirements are. Assume arguendo that
pedophilia was a crime, and it is not.
As I said, the plaintiff kept referring to it as a
crime, its not a crime. Assume arguendo that it was, there was
absolutely no evidence in this case of exactly to wit what the
defendant is alleged to have done. And so I think the case
falls short of rising to the level that it should go to the
jury. And for those reasons, the court makes a judgment in
favor of the defendants.
I appreciate, Mr. Kimberlin, the courtesy which you
showed your colleagues on the other side of the bar. I also
appreciate, counsel, the courtesy that you showed Mr. Kimberlin
and the way you conducted your part of the case as well. These
cases are tough, these cases are serious. Everybody had their
day in court, hopefully they can put this -- sort of put this
matter to rest now. Thats the ruling.
MR. AKBAR: Thank you, your honor.
THE BAILIFF: All rise.
MR. KIMBERLIN: Thank you, your honor.
(The proceedings were concluded.)


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X Digitally signed by Sarah Cook
Digitally signed certificate
NATIONAL CAPITOL CONTRACTING, LLC hereby certifies
that the foregoing pages represent an accurate transcript of the
duplicated electronic sound recording of the proceedings in the
Circuit Court for Montgomery County, in the matter of:
Civil No. 380966
BRETT KIMBERLIN
v.
AARON WALKER, ET AL



By:


________
Transcriber