A couple of weeks ago, a federal court representative reached out to an American citizen. She told that citizen that he could go to jail if he continued to blog about convicted perjurer and bomber Brett Kimberlin.
Given how the federal criminal justice system works, she was right.
An Ex-Con's View
The citizen in question was Paul Lemmen, a blogger who writes at An Ex-Con's View. As the title suggests, Paul is a convicted felon. The court official who offered the chilling warning was his probation officer, an agent of the United States courts.
Paul Lemmen has sustained multiple convictions for fraud. He's up front about it. In fact, it's part of the point of his blog. He's written a series of posts about his misdeeds, and about life as a prisoner. You can still find some stories about the more cinematic parts of his criminal history online — for instance, his elaborate fantasies claiming military ranks and records he did not earn to get jobs and money.
Most recently, Paul Lemmen was charged in the United States District Court for the Middle District of Tennessee with bank fraud and securities fraud. He entered a guilty plea and was sentenced to 41 months in federal prison (a moderately tough federal sentence for white-collar crime these days, in my experience) and five years of supervised release — the post-sentence supervision that has replaced parole in the federal criminal justice system.
Based on his background, reasonable people view Paul Lemmen's claims with some skepticism. He understands that. He accepts that as a convicted con man, he may be treated like the boy who cried wolf when he seeks redress for actual injustice. As he put it to me, "[t]he issue of believability is one that I knew would be a thorny one. I am prepared for it to be raised and will bear the consequences of my past actions. . . .Part of being reformed is accepting the healthy skepticism of others."
The Knock On The Door
Paul Lemmen finds himself warned about returning to prison because his blog is not just about his past crimes and his life in prison. He also writes about politics. Recently, he began writing about Brett Kimberlin, and about Kimberlin's campaign of "lawfare" against his critics. We've covered that campaign extensively here, because I view Team Kimberlin's successful abuse of the courts as an important First Amendment issue.
As with others before him, Paul Lemmen faced dramatic consequences as a result of voicing his opinions about a public figure and a matter of public controversy.
Paul was convicted and sentenced in the Middle District of Tennessee, but he's living in Florida. During his term of supervised release, he's supervised by a United States Probation Officer there. In late May 2012, he was providing his probation officer with information about his new address, a modest apartment in Tampa. The probation officer asked to visit him — the first visit she'd requested in months. When she visited, after they had discussed his compliance with his residential and financial paperwork, the officer warned Lemmen that she "had been told" that he needed to "not write about anything that could get [him] in trouble" and that she didn't want him to "go back to prison to await a judge's ruling on possible defamation." This was the first time the probation officer had ever mentioned Paul Lemmen's blogging. Paul asked her if this had something to do with what he had written about Brett Kimberlin; she responded only that she didn't want to see someone so easy to supervise be violated (that is, be found in violation of supervised release and returned to prison) and that he needed to be careful and "watch his back."
Paul does not have a single bad thing to say about his probation officer, and says she seemed very uncomfortable telling him this.
Paul is the first to admit that he has no direct evidence linking this warning to the lawfare activities of Team Kimberlin. But I submit that the inference is strong — even overwhelming. I've talked about the facts before: Kimberlin has used bogus "peace orders" and false criminal complaints to retaliate against critics. Team Kimberlin relentlessly characterizes any criticism as "harassment" or "stalking" or "defamation," and Kimberlin — a convicted perjurer — regularly claims that criticism of him has led to death threats, and asserts that his critics are legally responsible for those threats. Team Kimberlin has attacked and harassed an attorney who offered pro bono help to one of his critics. Team Kimberlin wrote to Aaron Walker's employers and local police, in an effort that was part of what led to Walker and his wife being fired on the pretext that his participation in "Everyone Draw Mohammed Day" presented a risk to his coworkers. Team Kimberlin has retaliated against a blogger who set up a charitable fund to help Walker by publishing the home address of the blogger's mother and a picture of her house. Moreover, the timing of the warning — coming as it did within days of Paul Lemmen's posts about Brett Kimberlin — is powerful evidence. As I've said before, we don't know whether Kimberlin himself coordinates or even knows of the actions of all of his supporters. But it seems very highly unlikely that the U.S. Probation Office just happened across Paul Lemmen's blog, independently concluded that it might be "defamatory," and dispatched Paul's probation officer to warn him. Rather, the most reasonable and probable explanation is that Team Kimberlin continued its lawfare by calling the probation office and accusing Lemmen of defamation or "harassment."
If you've been following this story, you probably accept the inference that Team Kimberlin called the probation office and accused Paul Lemmen of misconduct for blogging about Kimberlin. But I'll wager many of you are having trouble with the next step. How could this be truly chilling? How could such a warning be a real threat? How can blogging be a supervised release revocation? Won't it be immediately self-evident to anyone — probation officer or judge — that this is bogus? Even if Paul were arrested, wouldn't a sensible judge release him immediately?
To understand why Paul Lemmen was worried — why his speech was so immediately and effectively chilled — you have to understand how the system "works."
It's Easy To Get A Ticket On Con Air
When Brett Kimbelin was sentenced to 50 years imprisonment by a federal court in the early 1980s, sentences were effectively indeterminate — the number imposed had little or nothing to do with the sentence served. The U.S. Parole Commission determined when federal prisoners were released on parole, and supervised them after they got out. As a result, Brett Kimberlin didn't serve anywhere near his 50 year sentence, any more than Phillip Garrido did.
Indeterminate sentencing fell out of favor for some good reasons and some bad. In 1984 Congress passed the Sentencing Reform Act, ending indeterminate sentencing for subsequent cases and creating the convoluted Sentencing Guidelines. The new law replaced parole for subsequent defendants with post-sentence supervised release under the auspices of the U.S. Probation Office, an arm of the court. Federal sentences were no longer gut-check judicial pronouncements of a number that would bear little or no relation to actual time of incarceration. Rather, determining a federal sentence became a wonkish exercise resembling a cross between mediating a squabble over a long-form tax return and rolling up a Runequest character whilst on methamphetamine. Moreover, sentences became more truthful — or at least truthier. For the most part, federal convicts served at least 85% of the sentence imposed, with up to 15% credit for good behavior for sentences over a year. That's how Paul Lemmen wound up with the seemingly odd sentence of 42 months, serving slightly less than that.
So, probation officers — like Paul's — now supervise ex-cons like Paul, giving them as much or as little scrutiny as they see fit during their court-imposed term of supervised release. If the probation officer believes that a supervisee has violated the terms of supervised release by taking drugs or getting arrested or failing to report, typically the officer petitions the court seeking either a summons or a warrant to start the process of revocation of supervised release — that is, the process by which the supervisee gets sent back to prison for up to his or her full term of supervised release. And here, friends and neighbors, is where the wheels start to fall of the wagon.
An arrest for violation of supervised release must be supported by probable cause. But the probation officer has the power to make the arrest herself without a warrant or prior judicial approval. Moreover, though federal judges generally give semblance of scrutiny to arrest and search warrant applications (at least compared to typical state judges), in my experience federal judges come as close as they ever do to a rubber-stamp when reviewing revocation petitions. Indeed, the laws requires nut minimal scrutiny. They don't even require the judge himself or herself to sign the warrant or summons. The probation officer need not make her petition request under oath, as a federal agent must to get an arrest or search warrant; the polite fiction is that judges are aware of the credibility of particular probation officers. (That fiction is particularly ridiculous in cases like this, where a probation officer in one district would be seeking a warrant from a judge in another district.)
Once a supervisee is arrested on a warrant, a rule-based process begins. But that process is notoriously slow. The rules only require that a supervisee be brought without "unnecessary delay" before a magistrate for his first appearance, a "prompt" probable cause determination, and a full contested hearing "within a reasonable time." Moreover, when a supervisee is arrested in a district other than where he was sentenced, he is typically transferred to his sentencing district for the full revocation hearing — at the speed deemed fit by the U.S. Marshals. A supervisee might seek bail at his first appearance — in theory. But unlike people arrested on a new crime, a released inmate facing supervised release revocation bears the burden of proving by "clear and convincing evidence" that he will not pose a danger to society or flee. Its usually an insurmountable hurdle for an ex-con.
It is routine for supervisees to spend months in custody awaiting a full revocation hearing. It is routine for the probable cause hearing — when there is one — to be a mere rubber-stamp. Do judges sometimes find an accusation not proven at the full revocation hearing? Yes. (On one memorable occasion, a judge found no violation and released a supervisee I was prosecuting, finding that the accused violation was physically impossible. The probation officer was convinced that the supervisee had thwarted a urine test by simultaneously manipulating his penis, a tube, a jar, a valve, and a false penis, all while under scrutiny by a monitor. The judge stormed into chambers for a few minutes, and returned thundering that what was claimed was not possible. His clerks, who followed him out and then in again, looked rather ashen-faced.)
But the bottom line is this: a probation officer's mere accusation is usually enough to cause a supervisee to be incarcerated for a few months.
Paul Lemmen's Choice
This is the context for the dilemma facing Paul Lemmen.
Paul knew that the accusation was bogus. He believed he had not committed defamation on his blog. I've read it; I think he's right — he offers opinion or facts supported by evidence. He knew that his terms of supervised release didn't even purport to prohibit defamation in the first place. (Read them through the link above to his judgment if you doubt it.) It's true that Florida has a criminal libel statute, but it is of highly dubious constitutionality and too narrow to be applicable to anything Lemmen said, unless Kimberlin is secretly either a bank or a very successful cross-dresser. There is no lawful, rational theory on which Paul Lemmen could be found in violation of his supervised release for blogging about Brett Kimberlin.
But Paul Lemmen knows enough about the system to know that legal merit doesn't matter much, at least in the short- and mid-term. If his probation officer saw fit to accuse him, in all likelihood he'd be arrested, sit in jail for a while before a hurried appearance in Florida, take a trip on Con Air, and wait a month or two in hopes that the U.S. District Judge hearing his revocation would understand (and care about) the First Amendment. Paul Lemmen knew that because he was an ex-con, continuing to write about Brett Kimberlin meant very possibly going to jail for a while, whatever the right or wrong of it was.
This was no casual matter for him. Sure, incarceration isn't a casual matter for most of you reading this blog. But Paul has long-term severe health problems. Thanks to a criminal justice system with an approach to inmate health care that is somewhere between spiteful and amorally indifferent, incarceration in America can be a death sentence for someone with health problems. Sure, the U.S. Marshals would have gotten Paul Lemmen his medication — eventually, after a few layers of indifferent review, in generic form, in limited quantities, if the bureaucracy was working just right that week.
But even unjust incarceration, and the grave health risks that come with it, were not what was first on his mind. Paul Lemmen is the sole caregiver for his wife, who suffers from debilitating MS — and who suffered brutally during his prior imprisonment:
I was immediately worried for Barbara, my wife. Anyone who has read my blog, especially my prison stories series know the hell she went through while I was in prison. Her health is very bad and she requires someone (me) to help her dress, to bathe, she cannot cook as her neck and spine have been fused and she cannot look down at a stove or cutting board. She cannot drive and due to the short term memory deficit caused by her MS, she cannot remember what she has just done, so I must monitor her medications, etc. That was my prime worry!
What would you choose, under those circumstances? Would you keep blogging? Would you even want to?
I don't admire what Paul Lemmen has done in his criminal career. I'd be lying if I said I'd trust him in a position of responsibility based on that history. But I don't know what I'd do in his position. I talk a lot about standing up. But if I were facing what he faced, I fear that I might just fold like a cheap lawn chair.
Paul Lemmen hasn't. Paul Lemmen isn't.
Standing Up For What's Left.
Paul is not backing down. Rather, Paul is standing up.
I asked Paul Lemmen why he'd insist, at this potential cost, on continuing to write posts on a modest blog, posts that very few people were likely to read. Here's what he said:
Because I firmly believe in the words and concepts formulated by our Founders. That just because, in my stupidity I threw away my 2nd amendment rights as well as my right to vote, I have not lessened the attendant obligations nor the rest of the obligations of a citizen, prime among them to my mind, is the obligation to speak out in the public square when I believe that our government is doing wrong. To advocate and participate in our political dialog, on the local, state and national level. My restriction is only the inability to vote, all the other obligations of a citizen are intact.
I asked Paul Lemmen what he felt he had to bring to the discussion of Kimberlin, and why he thought it was important that his voice be heard.
I believe that as a career con-artist, I have quite a bit of insight into what he is doing. . . . [I believe it is] necessary to show up the differences between myself, an ex-con that has accepted responsibility for his crimes and Brett Kimberlin, someone who has not, who has in fact, avoided his responsibilities as he has avoided paying the civil judgment levied against him. I feel that if there is to be future acceptance of ex-cons that have made the very difficult decision to adhere to the lawful conduct expected by society, those who resist in their unlawful conduct must be exposed and the public made aware of them.
And so Paul Lemmen will continue to write.
Paul's willing to continue to write because people have convinced him that he's not alone in standing up. When he reached out to me, and I put up the Popehat signal seeking appropriate counsel for him, I received many responses and offers of support. Many were from lawyers in different areas of practice who just wanted to do what they could. Lawyers from the First Amendment Lawyers Association — which I recently joined thanks to the sponsorship of a friend — offered their support. Finally I was able to connect Paul with a formidable attorney to advise him — a consummately qualified federal criminal practitioner in his area. Those people will stand up and help Paul Lemmen come what may. If the U.S. Probation Office seeks to violate him based on protected First Amendment activities, I can guarantee that the decision-makers will be subjected to massive scrutiny.
I've also had people offer help in making inquiries and referrals that could lead to appropriate authorities investigating Team Kimberlin's communications with U.S. Probation. I am curious about exactly what was said to probation in the complaint about Paul Lemmen, and whether the complaint involved any false statements of fact. The Feds abuse 18 U.S.C. section 1001 often enough; it would be nice to see them investigate a malevolent false statement that actually causes palpable harm. What with the recent related intimidation of bloggers attracting Congressional attention, it may even happen.
Paul is not alone.
1. It could happen to you. You're thinking "I'm not an ex-con, it's can't happen to me." You're not an ex-con. But you can be sued in a bogus defamation case that can lead to your financial ruin — possibly by a plaintiff who will forum-shop for a state without an anti-SLAPP statute. You can be subjected to a bogus "peace order" approved by an indifferent judiciary, like Aaron Walker was. You can have your family's home address published and photographed to those hostile to you, like Ali Akbar. You can be SWATted, like some bloggers have been in incidents that may be related to Team Kimberlin. They can get to you. Perhaps you're thinking, "no, not me, I don't blog about controversial public issues." But politics is merely the current venue for the Kimberlin sociopathy and its various opening acts. Angry, crazy, narcissistic, vengeful people will pursue you for any reason or for none. When they do, you'll need to ask yourself —what have I done to stand up for people in this situation?
2. The dilemma of partisanship: I remain convinced that it is a mistake to treat the struggle against Team Kimberlin as a partisan issue. It's an illustration of the failures of a system that could be manipulated against anyone, and an occasion for support of fundamental First Amendment values that protect us all. Treating it as a conservative vs. liberal issue marginalizes it and makes it easy to dismiss. My view has been met with some genuine support, some lip service, and some open scorn.
But even I must admit that partisanship has its value. It's unlikely that members of Congress would be paying attention to this — and hopefully producing results — without the partisan angle. Similarly, the partisan spark has led to many people considering issues of freedom of expression and due process that they might otherwise dismiss as "liberal."
In that vein, I hope that the story of Team Kimberlin and Paul Lemmen will lead people to consider criminal justice issues that they might otherwise ignore. Most people hearing about the SWAtting of conservative bloggers seem to understand immediately how it puts the lives of the bloggers and their families at risk. I hope that instinct — that recognition — might lead people to be more open to hard questions about police use of force and police over-militarization. Similarly, I think that people will be appalled by the injustice that Paul Lemmen faces — but I hope that will then be more open to criticism of a system in which government misconduct usually goes unpunished. I hope that some people will question, a bit more, the odd worldview that government actors are obviously not to be trusted when armed with regulatory powers, but somehow very much to be trusted when armed with guns, badges, and the power to levy criminal accusations.
3. What distinguishes one ex-con from another? Why, you might ask, do I see ex-con Paul Lemmen as sympathetic, but not ex-con Brett Kimberlin? Well, if you have to ask . . . when Paul Lemmen's lies and fantasies were revealed and people on the internet lambasted him, he didn't publish his critics' addresses, file bogus restraining orders against them, seek criminal charges against them, or otherwise abuse them. He accepts responsibility for what he did. Is it possible that Brett Kimberlin has been subjected to injustice and unfairness at some point of the criminal proceedings against him? Certainly. But thousands of people aren't talking about him this month because he's a convict — they're talking about him because he's engaged in contemptible and fundamentally un-American lawfare against people who talked about him being a convict.
4. What can you do? If you've been reading this series of posts, I hope that you want to do something in some small way. You can, whoever you are. You can help tell the story on blogs and forums and social media, especially when victims need pro bono help. You can learn about, and support, stronger anti-SLAPP laws to make lawfare-through-defamation-suits more difficult. If you're an attorney, you can offer pro bono services — even the willingness to be local counsel is a huge help. You can help promote pro-free-speech attitudes by defending the rights of opinions you despise, and calling out lawfare and retaliation when "your side" uses it.
5. Be vigilant: Never forget — we are dealing with people who want Aaron Walker and Paul Lemmen to go to jail for criticizing them.
A lawyer's note: when Paul Lemmen sought my help, I determined that my best role would be securing local counsel for him. I have not revealed any confidential communications from when he first consulted me, and have only repeated what he told me during a subsequent interview he gave me for the express purpose of telling his story.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
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