Last year I talked about how the notorious and thoroughly evil Brett Kimberlin had sued several bloggers in Maryland state court for being mean to him. This is not to be confused with the ludicrous racketeering case that Kimberlin filed in Maryland federal court against a laundry list of detractors.
Today Kimberlin lost his state case at trial. He didn't just lose — he lost conclusively. After the close of Kimberlin's day of "evidence," the judge granted a motion for a directed verdict against him. Under Maryland law, that means the judge necessary found "a total failure of legally sufficient evidence to prove" Kimberlin's remaining defamation claim. The judge didn't just find Kimberlin's evidence unpersuasive; he effectively found it irrelevant.1 I await with interest a more specific description of the basis for the judge's ruling, but I previously talked about how Kimberlin's case was meritless because he was trying to misconstrue protected statements of opinion as defamatory statements of fact.2
Congratulations are due to the defendants — William Hoge, Aaron Walker, Robert Stacy McCain, and Ali Akbar. (I will update those links as each posts their version of the victory.) Special congratulations — and thanks and admiration — are due to attorney Patric Ostronic, who represented some of the defendants pro bono through what must have been a very time-consuming and annoying case. In a system that fails to stop the Kimberlins of the world from lawfare, the Patric Ostronics of the world are essential to protecting my rights and yours.
Kimberlin, as always, was the author, editor, and publisher of his own book of failure. Dave Weigel describes Kimberlin's opening like this:
This was after Kimberlin's opening statement, interrupted dozens of times by objections, as he tied the case to Benghazi, the suicide of Robin Williams, and the motivations that spurred the 9/11 terrorists.
Furthermore, even though the court ruled that Kimberlin could testify on his own behalf (despite a statute suggesting that people convicted of perjury may not), Kimberlin did not testify. Perhaps he was concerned about how testifying would expose him to a cross-examination that would lovingly recount his history of lawlessness, sociopathy, and crazed litigiousness. Perhaps he recognized the risk of a new perjury charge. Perhaps he realized that he would look ridiculous questioning himself. Perhaps he never planned to, and the purpose of this was always mere harassment. Whatever the reason, his failure to testify led to the directed verdict, and will make it very difficult for him to prevail on appeal.
The surprise in today's trial: I've chosen to dismiss my very competent counsel and self represent. I needed this. #BrettKimberlin
There's no kind way to say this: that was a stupendously self-indulgent and idiotic thing do to, that risked both Akbar's case and that of his codefendants. The good result doesn't magically make it more sensible, any more than it was a good idea to play Russian Roulette because it went fine and you won $10. Trial lawyering ain't rocket science. But it's an acquired skill requiring specialized knowledge of a lot of picky rules. It's a minefield. You can open the door to otherwise inadmissible evidence from the other side, you can make a hash of your own evidence so it isn't admitted or its effect is blunted, you can spoil your impeachment evidence and fail to discredit the opposing witnesses, you can alienate the judge and jury, you can fail to preserve essential rights both for trial and appeal, and you can drag your codefendants' case down with you. I hope that nobody will take Akbar's example to conclude that going pro se in a free speech case is a swell idea. Ask Roger Shuler how that turns out.
This result bodes well for Kimberlin's remaining ludicrous and vexatious claims in federal court against a wide variety of people and institutions. The federal court will see the result and, no doubt, view Kimberlin with even more skepticism. The state ruling may have legal effect in the federal case — let's let Brett Kimberlin discover why and how. And, most importantly, the trial shows that for all his braggadocio about having filed a hundred suits, Brett Kimberlin is too nutty and disorganized to do even a half-assed job in court. If only one could litigate by drug dealing, perjuring, and blowing the leg off innocent bystanders, he would have been an elite courtroom attorney.
Kimberlin is not done yet. this is what he said to Dave Weigel:
Kimberlin tells me he’ll appeal, and that as far as the bloggers go there’ll be “endless lawsuits for the rest of their lives."
No doubt he will continue to pursue vexatious litigation. And, so long as he mouths the right political platitudes, he'll always have a coterie of vapid and dishonest hagiographers, lapdogs, and deranged cyberstalkers. Kimberlin's rhetoric happens to be aimed at credulous "progressives"; Orly Taitz demonstrates he could have attracted a different crowd of supporters by mouthing conservative homilies.
But if Kimberlin won't give up, neither will the people he tries to censor. Lawyers like Patric Ostronic will step up. This victory will make it easier to recruit pro bono counsel to defy Kimberlin.3 His defeats will continue to mount and it will be easier and easier to convince judges to dismiss his cases. Sooner or later, a team will put together a motion to have him declared a vexatious litigant — thus blunting his ability to harass through litigation. Once he's declared a vexatious litigant in one jurisdiction, others will follow more easily. Most of all, more and more people will do what he hates most: talk about who he is and what he's done.
Kimberlin's not going to silence any of these defendants.
- Some judges take a more conservative approach and let the case go to the jury, trusting the jury to do the right thing. The judge can always issue a judgment notwithstanding the verdict afterwards if the jury gets it wrong. The benefit of this approach is a standard of review on appeal that is much, much unfriendlier to the plaintiff. ▲
- More specifically Kimberlin asserted that the defendants had made a factual statement that he is a pedophile, when in fact they offered opinions that he's a pedophile based on disclosed facts, which I outlined in that post. Some people are interpreting this result today as meaning that "it cannot be defamatory to call Brett Kimberlin a pedophile." That's a foolish interpretation. ▲
- I deeply regret that I was not able to find more lawyers to assist the defendants in this case; I feel I let them down. I will try harder. ▲
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017