Bloggers Defeat Brett Kimberlin's Vexatious Defamation Case In Maryland

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.

It sounds as if the trial was chock-full of oddness. Take this decision by defendant Ali Akbar on the second day of trial:

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.

  1. 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.  
  2. 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.  
  3. 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

Comments

  1. says

    Congratulations to my fellow University of Maryland law school grad Patrick Ostronic for his great work and for the defendants in their vindication.

  2. Matthew Cline says

    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.

    So, the judge gets to decide what is or or isn't protected statements of opinion, and then that which is deemed to be "not" gets passed onto the jury?

  3. Matthew Cline says

    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.

    About that: suppose I say "The sky is blue. Therefore, John Doe is a pedophile". I'm pretty sure that's not going to protect me from a libel suit; the facts disclosed actually have to back up the opinion. So does the judge get to decide if the disclosed facts sufficiently back up the opinion, or does the jury?

  4. Chris says

    Excellent. I'm a pretty liberal guy and generally don't care for many of the defendants (in either case), but this is unquestionably the correct result and I'm happy that it happened. I look forward to many future sanctions for Mr. Kimberlin.

  5. says

    @Lynn: I haven't earned any thanks here; this is all on Patrick and the defendants.

    @matthew: Generally the difference between statements of fact and statements of opinion is a question for the judge. And, yes, a statement is still protected opinion if its supposed factual premise is ridiculous. Hence conspiracy theories are generally not defamatory.

  6. Lynn Foster says

    Ken: He who rallies support and mocks those deserving of being mocked is also a Man in the Arena. Also my memory was that you helped Patrick Frey with this case but I could be wrong. Either way, the Kimberlins of the world being slapped down is a good thing.

  7. Kevin says

    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.

    Oh god, I cannot WAIT to read this transcript.

  8. Kevin says

    @Ken White

    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've seen a lot of this on Twitter. Perhaps it might be worth posting some kind of disclaimer to this effect more visibly, in order to dissuade people from saying something that gives Kimberlin a valid cause of action.

  9. says

    I am thankful for the excellent work Patrick Ostronic did in defending us. Thanks are due to you too, Ken White, for putting up the Popehat signal and alerting Mr. Ostronic (and several others who helped along the way).

  10. Rachel says

    It was reported that at one point on the first day, the judge asked Kimberlin if he was charged with statutory rape. My understanding was that Kimberlin eventually answered in the affirmative.

    In this case that Kimberlin wanted to make about him being defamed by being called a pedophile, he probably lost it with the judge on the first day. If someone was charged with statutory rape and is a public figure, defamation for calling him a pedophile is probably a stretch, but IANAL.

    I'm not sure how much readers of Popehat know about Kimberlin, but it is widely alleged that he had a part in the murder of a grandmother so that he could continue either grooming or outright sexual abuse of her minor granddaughter. It appears that Kimberlin imported his own (possibly now estranged?) wife from the Ukraine when she was 15, when he began having sex with her, and married her at 16. It is also alleged that he tried to get his wife's younger cousin to have sex with him.

    This is no joke. Kimberlin is pure evil. He is a man without a conscience or empathy. Take your typical person who leaves a dog in the car on a hot day and magnify that evil by 1000. Kimberlin is still worse.

  11. Dustin says

    Rachel, this blog has covered Kimberlin about as well as any has. You would enjoy reading Ken's past posts on this subject.

    I'm humbled when someone like Ken actually feels he came up short because he is so dedicated to a cause like our civil rights. Kinda makes my old blankets donation to Goodwill look a tad chumpy.

  12. Colin says

    More states need to make barratry a crime. I, for one, like that Texas made it a felony on the second offense.

  13. says

    @ Dustin

    I'm humbled when someone like Ken actually feels he came up short because he is so dedicated to a cause like our civil rights.

    Thank you for articulating this so well.

  14. Czernobog says

    I took a detour to look at Ali A Akbar's twitter account. The man is a looney. I'm relieved he was unable to to screw this case up.

  15. EPWJ says

    Ali is a person who was sued by a monster, stood up to him unafraid of him so others possibly wouldn't have too. I wouldn't judge too harshly

  16. says

    After my first wonderful post above, I want to add one more thing.

    The defendants in this case took a vicious stream of abuse from Kimberlin and the people Kimberlin duped into piling on. The abuse ranges from attack articles to SWATtings and death threats. The lawsuit itself was also a serious abuse. 5 of Kimberlin's complaints were dismissed without trial. The remaining two were dismissed because, after Kimberlin (apparently) spent all day ranting about Benghazi, 9/11, Robin Williams, all he had left was to make some defendants read their blogs out loud. Kimberlin seems to understand that the process itself is the abuse.

    I have asked myself whether I could take the constant attacks. Kimberlin and supporters have attacked the defendants, their families, their employers, churches, professional organizations, associates. I don't know how I could withstand it, especially not for so long. The defendants are very brave. Thanks to them sticking in this, Kimberlin may finally be stopped.

  17. andrews says

    Would it not be nice if Maryland had an offer-of-judgment statute, and even nicer if the next few days revealed a motion for fees based on a well-formed offer? In [this state], anyway, such a thing can serve to make meritorious defense ultimately less onerous.

  18. Swamp Monkey says

    It's a shame that even after all this, and after a statement that he is going to subject the bloggers to "endless lawsuits for the rest of their lives," he has yet to be labeled as a vexatious litigant.

    It seems patently obvious that this and other suits were intended not to remedy a wrong that he had suffered but merely to harass his critics. I assume that he has no means of paying any sanctions which might be leveled against him by any court in the land.

    So what is to stop him from filing again and again and again? How many abusive suits can he file before a court steps in and labels him as a vexatious litigant?

  19. Pablo says

    @Rachel

    If someone was charged with statutory rape and is a public figure, defamation for calling him a pedophile is probably a stretch, but IANAL.

    It doesn't seem that it could possibly rise to the level of reckless disregard for the truth. Given the rest of Kimberlin's irrefutable criminal charms, it's no stretch to suggest that he's defamation proof. His reputation cannot be sullied any more than Kimberlin himself has already sullied it.

  20. Zemalkop says

    "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."
    Don't let it get to you, you can't find an army of pro-bono lawyers for every case. While we obviously all want to do better, you definitely didn't let them down. Without you a lot of people (or at the very least myself) wouldn't even have known about this case or Brett's litigious streak, and one good pro-bono lawyer is a whole lot better than none. You can't burden yourself with trying to help everyone and then beating yourself up for not doing enough. That sounds like a very unhealthy thing to do.
    You've done enough. You've done good. The world is a better place because of you.

  21. TimH says

    @Dustin: I'd say your Goodwill donation was chumpy because the CEO, Mr Gibbons, took $463,041 salary in 2010 according to their public Form 990. I suggest Sally Army instead.

  22. W. H. Heydt says

    @TimH. I have mixed feelings about the Salvation Army. On the one hand, they push their religion onto people that come to them for assistance which is a pretty scummy thing to do. On the other hand, do to the peculiarities of British law, they were able to aid distressed seamen during WW2 while the Red Cross was required to charge for such aid. (My father was an officer in the Maritime Service through the US involvement in the war.)

  23. Dan Weber says

    Evaluating charities is difficult work. Is someone making a lot of money running a charity bad? I dunno. Sometimes it really takes a lot of money to pay the market rate for a CEO to do that.

    Ranking charities by "overhead" or other simple metrics really misses the mark. You have to figure out where you marginal dollar goes. And this isn't easy to figure out.

  24. says

    he'll always have a coterie of vapid and dishonest hagiographers, lapdogs, and deranged cyberstalkers.

    Too many people actually swallow that whole "The enemy of my enemy is my friend" nonsense. That only works if your enemy is 100% wrong all the time.

    Sometimes, the enemy of your enemy is even worse than your enemy.

  25. Rick C says

    @W. H. Heydt, what's wrong with that behavior? You come asking someone for food or money, it's not at all unreasonable to get a little sermon or whatever.

  26. Brian Sament says

    Minor point, but this irks me:

    Orly Taitz is not the Bret Kimberlin of the Right. No one would know who this freak is, had not MSNBC devoted something like 5% of its air time to her a few years back. The Lefties on that network pretended she had significant support, in an effort to discredit the Tea Party movement, which was and is about fiscal restraint & liberty, not birtherism.

  27. Tom F says

    "Perhaps he realized that he would look ridiculous questioning himself."

    On reading that sentence I mentally replayed the scene in Bananas (1971) in which Woody Allen cross examines himself by jumping in and out of the witness box. The difference is, there never will be anything amusing about BK. … The pedophile part of it though …

  28. Dean says

    How is what Kimberlin did any different than what James McGibney is doing with his LOLsuits against bloggers in three different courtrooms across the U.S.? McGibney is suing people for the same things that Kimberlin is. He is facing $1 million in anti-SLAPP sanctions in Texas and two anti-SLAPP motion hearings in federal court in California, all because some people might have criticized him and his revenge business. McGibney goes out and buys up websites in the names of people to harass them. In fact, he bought up a website in the name of the Texas attorney to harass him and harm his business!

    Why haven't you done a story about this clown, too? He is just has bad as Kimberlin I think.

  29. W. H. Heydt says

    @RickC… I have no problem with it…so long as is a sign on the door clearly stating "Religious indoctrination is forced when any service is supplied."

    As for what's wrong with it…it presumes that everyone that is seeking help is (a) seeking that sort of "help" as well, and (b) that everyone coming there is religiously close enough to the organization not to find the proselytizing offensive.

    To the extent the SA gets government funds to do their charity work, they should either not accept public funds or drop the religious angle. (Since I *don't* share their religious ideas, I don't donate to them. I'd rather my taxes not be "donated" to them, either.)

  30. Devil's Advocate says

    I also am shocked that religious people in religious organizations talk about religion while helping people. Shocked! Isn't there some sort of amendment to the Constitution about that?

  31. SarahW says

    Did McGibney set a bomb in the parking lot of a high school on game day? And by the way, HI NEAL.

  32. Fasolt says

    Isn't it obvious how the terrorist activity and Robin Williams' death are all related to Kimberlin? They were all dismayed at how unfairly Kimberlin has been treated by everyone over the years and acted out in their own way. I'm sure the real reason behind the Middle East conflict is Kimberlin's unfair treatment at all of our hands as well. Ferguson riots? Kimberlin. Stock Market down? Kimberlin. Unseasonably warm/cool temperatures in your part of the World? Kimberlin. My vegetable garden coming in slow this year? Kimberlin.

    It all makes sense to me now.

  33. Fasolt says

    By the way, anytime I see the word "notorious" mentioned anywhere, like it is mentioned in your post above, I cannot help but put the word "furry" after it. Thanks a lot Jim. I hope you guest-post more responsibly in the future.

  34. NotPiffany says

    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.

    Ken, sweetie, I think you're being too hard on yourself here. Looks to me like Mr. Ostronic worked out just fine, even after one of the defendants turned out to be a bit of a knucklehead.

Trackbacks

  1. […] Allergic to Bull Helm's Deep The Daley Gator Saber Point PJ Tatler That Mr. G Guy Patterico's Pontifications Conservative Christian Man Thinking Man's Zombie The Other McCain The Camp of the Saints Nice Deb Evi L Bloggerlady Blogging Bad w/Gunny G Truth Before Dishonor Texas Fellowship Popehat […]