Professional Documents
Culture Documents
TRIAL
Rockville, Maryland
DEPOSITION SERVICES, INC. 12321 Middlebrook Road, Suite 210 Germantown, MD 20874 (301) 881-3344
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BRETT KIMBERLIN, Plaintiff,
v.
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WHEREUPON, the proceedings in the above-entitled matter commenced BEFORE: THE HONORABLE ERIC M. JOHNSON, JUDGE
APPEARANCES: FOR THE PLAINTIFF: BRETT KIMBERLIN, Pro Se Bethesda, Maryland 20817
FOR THE DEFENDANT: REGINALD W. BOURS, III, Esq. Reginald W. Bours, III, P.C. 401 East Jefferson Street, Suite 103 Rockville, Maryland 20850-2617
I N D E X Page Opening Statements: Brett Kimberlin Plaintiff Pro Se Reginald W. Bours, III, Esq. For the Defendant WITNESSES For the Plaintiff: Bruce Sherman Brett Kimberlin For the Defendant: (None) EXHIBITS For the Plaintiff: Exhibit Exhibit Exhibit Exhibit No. No. No. No. 1 2 4 5 20 -50 50 20 49 --MARKED RECEIVED 13 35 22 57 -83 --DIRECT CROSS REDIRECT 5
RECROSS
For the Defendant: Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit No. No. No. No. No. No. No. 1 2 3 4 5 6 7 29 31 -72 ---30 31 33 76 77 79 79
Judge's Ruling
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cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Walker. MR. KIMBERLIN: THE COURT: Good morning, Your Honor. THE CLERK: P R O C E E D I N G S Case 8444, Brett Kimberlin versus Aaron
Bours, sir, on behalf of the respondent in the original proceeding and the appellant in this Court. Walker. THE COURT: All right. Thank you. His name is Aaron
Court a little background on the case to speed us along. I do want to ask for a rule on witnesses, although I have no objection to Lieutenant Colonel Sherman being in the courtroom during this statement. lady thats in here is a witness. I dont know if the young The gentleman on the far
left of the courtroom is not a witness. THE COURT: Are you a witness, maam? No.
Fine.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Bours.
5 witnesses, if Mr. Kimberlin wants to call anyone, to be sitting in here while Im making statements. THE COURT: All right. Mr. Kimberlin, do you wish to
make an opening statement? MR. KIMBERLIN: THE COURT: Go ahead. OPENING STATEMENT BY BRETT KIMBERLIN, PLAINTIFF This case arises out of a peace order from the District Court. The District Court found, by clear and Yes, sir.
convincing evidence, that Mr. Walker has been harassing and that he assaulted me in this courthouse on January 9th, 2012. Mr. Walker has been engaged in a campaign of bullying towards me online and this resulted in him showing up in a court case that I was involved with, getting admonished by Judge Rupp to remain quiet in the court case, and following me outside the courtroom where he continued to berate me and came at me in an aggressive manner which resulted in me taking a photograph of him as he was coming to hit me. me at that time. The courtroom staff came out of the courtroom, from Judge Rupps court, called the sheriff. Nine deputies showed He did assault
up and they advised me that they could not arrest Mr. Walker because they didnt see the assault, advised me to go to the commissioners office and press charges, which I did, and I got
Attorneys office chose to nolle prosse the case, but the peace order has remained in effect. Since then, since that January 9th attack, Mr. Walker has retaliated against me in a number of ways, by filing a false criminal charge against me which didnt even get past the screeners at the States Attorneys office. He filed a false
peace order against an associate, sending the police out to my house to serve him when he has never even visited my house. Hes filed a $66,000,000 lawsuit against me, a frivolous and malicious lawsuit against me in Virginia. Twitter campaign against me. He has engaged in a
blog that Im human filth and asked people not to donate to my nonprofits and if they do, that he will consider charging them with criminal and civil penalties. Im the director of a nonprofit. over 10 years here in Maryland. I have been for
Congress members, congressional offices, government offices, and community leaders to get young people out to vote and engage in the world. I was arrested 34 years ago on a crime. charged with a bombing case. to possess marijuana case. I was
He has used his blog over and over for months and months
to call me a terrorist and a perjurer, and asked people to harass me. Ive gotten death threats because of his actions.
Ive been called terrible names and its a continuing process of harassment, and he has attempted to destroy and besmirch my reputation. Im a father. Im a husband and Im a community
leader here in the area, and Mr. Walker wants to destroy that because I, in my nonprofit, have helped Muslims -- Muslims, moderate Muslims. I work with Muslim artists and activists. nonprofit is called Justice Through Music. My
Justice Through
Music is a 501(c)(3) here in Maryland and as part of our work, we work with Muslim activists here and abroad to provide reconciliation between Muslims and Christians, and to oppose oppression and anarchy in dictatorial countries overseas. The
State Department sends young Muslim activists to train with my organization every year. Mr. Walker does not like my work with Muslims. runs -- hes a publisher of a blog called Everyone Draw Mohammed. Everyone Draw Mohammed asks people to draw insulting He has over 800 depictions He
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Muslims.
8 tells Muslim bitches, quote, to come to his blog and if they dont like what he says about insulting them, to come to his home in Manassas, Virginia, where hell engage in a gun battle with them. So Mr. Walker does not like the fact that I support He tells people on his blog that the only way hell
post a depiction on his blog is if considers it fatwa worthy, a fatwa being an edict by a Muslim cleric that -- an edict condemning the work or actions of a certain party. So this has gotten into quite a contentious situation and Ive been harassed. Ive asked to be left alone. Mr.
Walker harassed me through a pseudonym called Aaron Worthing. Aaron Worthing was -THE COURT: Excuse me. Yeah.
is, as you may know, a preview of what the case is about and I think Ive got it. MR. KIMBERLIN: THE COURT: Youve got it. Okay.
MR. KIMBERLIN:
OPENING STATEMENT BY REGINALD W. BOURS, III, ESQ. ON BEHALF OF THE DEFENDANT Your Honor, from my perspective, what were really here to determine is whether the elements under the peace order
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorney. things. statutes are met by anything that is actually proven in this Court.
I think a really good place to start is Mr. Kimberlin is absolutely incorrect when he says that a District Court judge found that, by clear and convincing evidence, that there had been an assault. You have the file there and Ill simply
conveniently hand up the final peace order signed by Judge Everngam in District Court. He found, by clear and convincing evidence, two He found that there had been harassment and that it
was likely to continue. Were here de novo so Im not going to say that Mr. Kimberlin cant bring up anything at all. that up to the Court to decide. Im going to leave
with the District Courts finding is that harassment is defined under the criminal laws of the State, and Ill argue this later. I have the statutes here with me. Youll find that
nothing that Mr. Kimberlin actually testifies about, even if you accept his testimony, constitutes harassment under the criminal statute and if it doesnt, then a judge cant order a peace order based on that. So thats just the starting point.
Let me tell you that my client is a practicing Hes admitted to the bar in the District of Columbia He has a hobby involving
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to Bull.
indirectly, thats how he came to Mr. Kimberlins attention. What is really in the background of this case is Mr. Kimberlin was convicted of a number of things that he hasnt told you about. He was convicted as an adult of perjury before He was given a 50 year sentence for
bombing, and one of the aspects of that bombing is that an individual who had his leg blown off committed suicide, and his widow sued, and collected, not collected but got, a $1 million judgment against Mr. Kimberlin, which he later refused to pay and a federal court found him in violation of his parole and revoked his parole for not paying the civil judgment that was part of his parole conditions. as recently as 1999. Be that as it may, what happened in the background of this case is that this gentleman, Mr. Kimberlin, sued somebody named Seth Allen in this court. I have the files here, but The case is Civil He Some of these things happened
got a judgment for $100 from Judge Jordan for defamation, the defamation involving some of these same matters about his background, supposedly. Judge Jordan also ordered and cited an
injunction saying that Seth Allen should not do anything harmful to Mr. Kimberlins business.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 As near as I can place it, the only connection my client has to any of this is that he heard about the action
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against Seth Allen and told Seth Allen he should get a lawyer, because Seth Allen defaulted in the case I just mentioned. So
everything that happened between Kimberlin and Seth Allen was on a default judgment basis. After Judge Jordan on November 14 issued an injunction and awarded $100 in damages to Mr. Kimberlin, Mr. Kimberlin claimed that Seth Allen was continuing in his defamatory or business interference activities. Because the
name Aaron Worthing had come up in the proceedings, he issued subpoenas to Google, among others, to reveal the identity of Aaron Worthing, the blog that I was telling you about. My client got involved in that litigation peripherally, but only after he sent -- he, meaning Mr. Kimberlin -- sent him an e-mail in which he brought out all of his personal data in a motion that he had filed to withdraw the request for subpoenas to Google. This makes no sense to most people, I think, maybe not to the Court, but whats going on here is that Mr. Kimberlin was actually engaging in a campaign against Mr. Walker, not the other way around. In fact, the only thing that
had happened prior to January 9th involving a blog or anything was on December 11th of 2011. had done at all. Thats the only thing my client
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12 So, at any rate, my client comes to the courthouse on January 9th because theres a motion in front of Judge Rupp across the hall, and he stood up in front of Judge Rupp, and pointed out that this man had put his identity out in a pleading thats filed in the court, and he asked that it be sealed, which he did; that is, Judge Rupp did agree to seal the document this man put out. This man was doing it because he
actually was attempting to cause harm to my client. What hes told you about this Muslim Web site and everything else, theres maybe a grain of truth to it, but what youll find in the end, if you ever get to it, is that I think that Mr. Kimberlin was hoping that somebody would come to my clients home because of the litigation in which he was identified and actually cause him harm. Thats a process of
intimidation that is typical with Mr. Kimberlin as we may show during the evidence. At any rate, my client and Mr. Kimberlin were pro se in the proceedings below. My client is not a Maryland lawyer.
The matter of the statutes on harassment wasnt even argued in the proceedings below. it. We have a transcript if you need to see
not committed harassment within the meaning of that statute. That statute requires a course of conduct that just isnt going to be shown by the evidence. Secondly, they have no connection to each other at
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q busted. this point in time, other than maybe this lawsuit that was filed against Mr. Kimberlin in Virginia. But this is not an
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appropriate proceeding in which to order a peace order against Mr. Walker and I think youll find at the end of the case that the petitioner should not be believed, that the evidence is not clear and convincing of either an assault or harassment. THE COURT: Thank you.
Are you your first witness, sir? MR. KIMBERLIN: I can -- because the sheriff is here,
I would be happy to call him so he can -THE COURT: order you want to. MR. KIMBERLIN: think is your name. THE COURT: I dont think he appreciates being Yeah. Ill call Sergeant Sherman, I Thats fine. You call witnesses in the
BRUCE SHERMAN called as a witness on behalf of the plaintiff, having been first duly sworn, was examined and testified as follows: THE COURT: You may inquire, sir. DIRECT EXAMINATION BY MR. KIMBERLIN Hi. Colonel Sherman, youre familiar with an
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incident report No. 12 -- Im sorry, an incident report dated January 9, 2012, that was filed by deputies in the Montgomery County Sheriffs Office. THE COURT: All right.
BY MR. KIMBERLIN: Can you tell us what that incident report says? MR. BOURS: THE COURT: Object. I sustain that objection.
Let me just say this for the record, sir. I know this matter was down in District Court and in the District Court, by rule and practice, the Court is permitted to relax the rules of evidence, the reason being that most people who come to District Court, particularly with small claims, do not have lawyers. Often times the claims in
District Court, the amount of the claim, certainly the legal fees, would exceed what the amount of the lawsuit is. So most
of the people or many of the people who appear in District Court are not represented, and so the Court relaxes the rules and allows citizens to sort of present their case. Here in the Circuit Court, we are not permitted to do The rules of evidence and the rules of procedure apply
whether the person is a lawyer or whether they are not a lawyer. We have one set of rules. So, the objection that counsel has made is to the
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doesnt fall within any -- well, I havent read it, so I dont know, but presumably, it doesnt fall within any exception to the hearsay rule and would not be admittable here in Circuit Court. At any rate, police reports and the sheriffs
department is a law enforcement agency, police department. Those reports are not admissible. MR. KIMBERLIN: So youre saying the police report is
not admissible because the person that wrote it is not here? Is that what youre saying? THE COURT: Im saying that it is hearsay. It
doesnt fit within any exception to the hearsay rule and they are routinely not admitted in the Circuit Court. Now anything that the sheriff saw, anything that he witnessed, he can certainly testify about that. MR. KIMBERLIN: Okay.
BY MR. KIMBERLIN: Were you there at the incident? No, sir. MR. KIMBERLIN: THE COURT: MR. BOURS: Then I have no further questions.
have some things Id like to introduce through him at the appropriate time. THE COURT: Well, I know --
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q ahead. BY MR. KIMBERLIN: Are you -- is a part of your job description to be MR. BOURS:
to remain or ask him to remain until its our turn to present evidence. THE COURT: I know how busy they are, so what I will
allow you to do is clear the hurdles of evidentiary rules and I wont rule on the admittance or not of those things, and he doesnt need to stay. Are you following me, sir? MR. KIMBERLIN: question then? THE COURT: Sure. But Im going to let Mr. Bours So Well, could I just ask him another
mark and identify whatever it is needs to come through him. the issue of whether it comes in or not wont be whether it comes in through him. Hell be gone. The issue will be
whether whatever it is is admissible otherwise. But if you have other questions, you may ask. Go
the keeper of the video tapes of the courtroom incidents? A The Montgomery County Sheriffs Office does keep some In the current technology, they are not
video recordings.
tapes but theyre hard drives. Q A Okay. But the Sheriffs office does maintain some video
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incident of January 9th? A Im not personally familiar with it. Im aware that
there was some video coverage of an incident in the courthouse on January 9th and that that DVD of that video was provided to both the States Attorney, for discovery purposes, and you for discovery purposes. MR. KIMBERLIN: that video? THE COURT: If you can have it properly identified. I mean is there going to be an Your Honor, am I allowed to show you
A party doesnt worry about what the You call your own plays. You dont try the case to If
other side is going to object to. they object, thats what they do. them.
is admissible, it will be admissible over objection, if thats the appropriate thing to do. BY MR. KIMBERLIN: If I show you a video, can you tell the Court whether
that is the video of that event? A I can tell you that the Sheriffs office maintains
videos and that as a result of request from the parties, those videos were copied onto DVDs and provided either in criminal
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 view it. THE COURT: We have to have it. But it has to be a part of the record. It cant -So you cant -computer. THE COURT: You dont have a disc? I dont have a disc. discovery or pursuant to an information request to yourself. I was not there for the incident. incident occur.
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on the DVD system is a recording of what our DVD and -- or our recording system and video cameras - observe in the courthouse, but I dont have any personal knowledge of what happened on that date or any time between you and any other individual. MR. KIMBERLIN: Okay. Your Honor, I do want to I can do it now or I can
introduce this video at some point. do it as we go. MR. BOURS: THE COURT:
Im going to object again. Have the item marked. I mean its on a video. Its on a
MR. KIMBERLIN:
You can
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the clerk, shown to the witness, have the witness identify it, then the Court would receive it into evidence. MR. KIMBERLIN: THE COURT: Okay.
and given to both sides? MR. KIMBERLIN: Yes. There was a disc made. I I
downloaded it on my computer because I didnt think you would be able -- its in a very strange format and we -THE COURT: Well, we deal with those formats all the
As you see, we have a machine here for showing the disc. MR. KIMBERLIN: THE COURT: Can I -- Id like to --
see if the sheriff can identify them. MR. KIMBERLIN: THE COURT: May I approach?
Sure.
BY MR. KIMBERLIN: Im going to hand you three photographs and -THE COURT: Let Mr. Bours see them. Okay.
MR. KIMBERLIN:
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that, too. THE COURT: MR. BOURS: THE COURT: Anything else? No. Overruled. Okay. (The photographs were marked for Ill receive the pictures. Q BY MR. KIMBERLIN: Im going to hand you three photographs here.
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If you
could just look at those and state to the Court whether those appear to be from the video in question. A They appear to be printouts from the Sheriffs office
video system showing scenes on the ninth floor lobby of the judicial center. 2012. The camera frame identifies it as January 9,
Sheriffs office uses for video cameras in the courthouse. MR. KIMBERLIN: Thank you.
Your Honor, would you like to see these? THE COURT: MR. BOURS: Any objection as to these? The objection I really have is they dont They are picked by him for I think we need to have
whatever he intends to show with them. the complete record. MR. KIMBERLIN:
MR. KIMBERLIN:
on the stand if you want to ask him questions about them. BY MR. KIMBERLIN: Can you identify anything in these pictures at all? Mr. Kimberlin, there are three pictures. Theres one
taken at 11:42:34 a.m., according to the marking on the picture, one taken at 11:43 a.m., and one taken at 11:45:02 a.m. The first one appears to be a picture of the ninth floor lobby taken from the camera in the lobby. There appear
to be three individuals in the picture, too, on the left side, one on the right side, and some briefcases, two briefcases on the floor. I cant identify who the people are. I dont --
have no idea who they are. Q A 11:43 a.m. Okay. The second picture was, is marked as being, taken at I think there are one, two, three, four, five I cant identify who they are.
And in the last picture taken at 11:45:02 a.m. on January 9, 2012, there appear to be a whole lot of people in there, probably 10 people, of which three appear to be Montgomery County deputy sheriffs, people wearing the tan Montgomery County deputy sheriff uniform that Im wearing; one or two people in a dark blue uniform, which appear to be
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q BY MR. BOURS: Do you know a deputy named Jim Johnson? Yes. Is he in any of these photographs, if you want to sheriffs or law enforcement officers, and then four to six civilians. I can guess at who the people are, but I cant
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identify their faces. MR. KIMBERLIN: questions for the Colonel. THE COURT: MR. BOURS: Any questions? May I have the photographs? CROSS-EXAMINATION All right. I have no further
look again? A Hes not in the first two. The one taken at 11:45:02
picture, so you know, its hard to tell. lit, but it could be Jimmy Johnson. Q
earlier in your testimony? A Q office? A Q Yes. Was the video that weve been talking about, the full Yes. Was his report submitted to the States Attorneys
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
23 video, not just individual photographs, was that also submitted to the States Attorneys office? A Yes. To my knowledge, the DVD video, the incident
report from the Sheriffs office, and perhaps printed out frames of pictures may have been submitted for discovery in a criminal case. Q A Q Do you supervise Deputy Johnson? Not directly, but Im in the supervisory chain. From your knowledge, did he testify in the District
Court peace order proceedings? A In fact, I was summoned as a witness in the District Both
Deputy Johnson and myself were there, and Deputy Johnson did, in fact, testify in the District Court peace order proceeding. Q A But you did not in that proceeding? I think I was called to the stand and I identified
the report. Q A witnesses. Was the DVD shown in District Court? I have no idea. We were there. We were called as So it was not shown
left, I have no way of knowing. Q A Deputy Johnson, where is he this week? Hes, I think, on the eastern shore of Maryland at a
training program.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q then? MR. KIMBERLIN: THE COURT: I have no objection. Q A Q So hes not available to testify today? No, sir. Were you in the courtroom when he testified in
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District Court? A Yes, sir. MR. BOURS: Judge, Ill just proffer so that we dont I do have a disc and I can have
to work on and Im reluctant to take it out and ruin that. Id like to show this to the Colonel and see if he can agree that this is the full video. THE COURT: MR. BOURS: it in again? MR. WALKER: MR. BOURS: I think we got half an hour. Okay. You want to pull out the plug And to Mr. Kimberlin.
Okay.
at what it is hes showing. MR. KIMBERLIN: BY MR. BOURS: Tell me about the system that these photographs are I assume its the same thing. Yeah.
taken with or these videos are taken with. A Theres a Vicon system that has a number of hard
about the electronics, but there is a rack in the Sheriffs office on the T8 level in the courthouse that records video feeds from cameras that are installed in the courtrooms, installed in the hallways in the courthouse, pursuant to a security study done by the National Center for State Courts some years ago. They typically -- some of them are fixed cameras. Some of them are directable cameras and they record what I would call multiplexed video. In other words, its not a There are maybe 16 cameras
being recorded on one hard disc and it will switch from each of those 16 cameras, as I understand it, take a fraction of a second, switch to the next camera, and then it gets multiplexed. Then theres a software kind of set up that
allows it to separate those pictures out again. Q A Okay. So it will take a picture but it will be every There may be some gaps in it.
sixteenth of a second. Q A
So its every sixteenth of a second that it -I dont know the exact fraction of a second. I know
that the multiplexing will go through a number of different cameras and then when you view it, it reassembles those. But
it wont be like a high definition movie that you would watch on your cable tv where its continuous.
a pole or some kind of extension that comes down from the ceiling and has multiple views around the ninth floor, is that right? A The -- there are cameras installed in various
locations in the courtroom, courthouse, in the lobby. Q Can you tell from this video though where this one is
conduit, whether its optical cable or electrical cable, that then runs back down from that camera to the basement in the courthouse to a essentially a computer hard drive. the information gets recorded on that hard drive. Q You know for a fact that the disk that is playing It gets --
this was recorded for a period of time beginning at roughly 11:40 a.m. on January 9th? A I -- other than looking at the data thats displayed
on the picture itself, I wouldnt know what the time frame, date of it is or the time frame. Its self authenticating in
the sense that the frames have a date indication that I would presume is correct. Q Just so you dont have to come back, Im going to
start this real quick because it doesnt take very long, and ask if it appears to be genuine to you.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q
27 (Whereupon, the video tape referred to was played.) THE WITNESS: Without going frame by frame through
each picture frame in there, I would characterize it as apparently a stop motion picture of the lobby thats outside this courtroom. BY MR. BOURS: This would be the disk that was submitted to the
States Attorneys office for discovery purposes, correct? A Again, without seeing the disk, I -- the Vicon
presentation that you have on the screen appears to be what Im used to seeing from the Vicon system. myself. I didnt make the disk
original disk that the Sheriffs office provided to them, or whether they duplicated it, or what not, but the imagery seems to be consistent with what Im used to seeing on Vicon. Q watch it? A Again, theres not any way I could tell whether its I dont see anything obvious. Do you see any evidence of tampering with this as you
that show up and Id like to see if you can say who they are and if Jim Johnson was one of them, according to one of the photographs thats on the moving screen. A Can you move it a little closer? The elimination is
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Johnson, Deputy Johnson. THE COURT: THE WITNESS: The short one? I mean I think the Court -- if the
Court looks at it, he can -- Your Honor can see who they are as well as I can. I think theres Kim Meronawitz (phonetic sp.).
I think there may be -THE COURT: THE WITNESS: Let me see. I think Jimmy Johnson is one of them.
Hes the shorter one with short blonde hair. BY MR. BOURS: Im going to show you a package that appears to come
from the States Attorney from Montgomery County regarding discovery and just ask this one question. The first document Is that a true
that Im pulling out here is a two-page report. and accurate copy of Deputy Johnsons report? A Q Yes, sir.
business of the Sheriffs office regarding any incidents that occur in the courthouse? A Yes, sir. MR. BOURS: May we have this marked as Respondents
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q BY MR. BOURS:
29 (The document referred to was marked as Defendants Exhibit No. 1 for identification.)
are sustained by someone as a result of that incident, is there any part of this report or any report that you would keep regarding injuries? A One of the questions on the incident report is a
question about injuries. Q In reference to this incident, was there any reported
or obvious injury to Mr. Kimberlin? A The only way I would know would be by reading the
incident report and the incident report reflects that it was, first of all, that it was prepared by people responding after the incident was over. I think, if I could see the document,
theres a section of injuries under the name Brett Kimberlin. Injuries. Q It says unknown. Would it have been at least part of the sheriffs
duties to inquire about injury or help someone obtain treatment for injuries, I assume? A Normally, if there were obvious visible injuries or
if there were some allegations of injuries, there would be a request as to whether or not somebody was injured. But in a
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q BY MR. BOURS:
30 and theres no obvious gross physical injury, they may put down unknown. Q Were you present in District Court when Deputy
Johnson testified that there were no signs of injury on Mr. Kimberlin? A I was present in District Court when Deputy Johnson
testified for the entire time he testified. Q A Do you remember that part of his testimony? I dont specifically remember that. MR. BOURS: Respondents No. 1. THE COURT: Any objection? No objection. Your Honor, Im going to offer
Ill receive it. (The item marked for identification as Defendant's Exhibit No. 1 was received in evidence.)
you submit to the States Attorneys office individual photographs taken from the video? Was that part of what you
all submitted to the States Attorneys office? A To my knowledge, the Sheriffs office, through Deputy
Johnson, would have submitted the incident report, the DVD, and several photographs printed out.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q BY MR. BOURS: Im sorry. Q Im going to hand that to you and just ask if you
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could look at each one and tell me whether thats the format in which Deputy Johnson would have submitted photographs from the video. In other words, if, are these Sheriffs department
Sheriffs office Vicon video system. MR. BOURS: Im going to ask that the Clerk staple --
collectively, as Respondents No. 2, then you can staple them further if youd like, and offer them. objection. THE COURT: All right. Ill receive it. I think theres no
(The items were marked for identification as Defendant's Exhibit No. 2 and were received in evidence.)
lower right-hand corner, is that correct? A Q Theyre self authenticating as to date and time. When we play this for the Judge, or if we play this
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And you can see the time switch from each frame
and you can see that each frame is roughly two seconds after the previous frame. Q One other area that, I guess, qualifies as my part as
opposed to Mr. Kimberlins direct, youre familiar with the rules of this Court and of the Maryland Court of Appeals, are you not, with regard to taking photographs in the courthouse? A Q Yes, sir. Im going to show you Respondents Exhibit No. 3 for This is a copy, I believe, of the Maryland
identification.
Rule, is that correct? A Q Yes, sir. Would you just state for the record what the policy
is of people taking photographs inside this court building? A Pursuant to Maryland Rule 16-110, the taking of
photographs within the court facility is prohibited absent permission from one of the judicial members of the court. Q Are you aware of any permission having been granted
to Mr. Kimberlin to take a photograph of anybody or anything on January 9th? A On January 9th and until some time after January 9th,
I had no idea who Mr. Kimberlin was, so I wouldnt know whether or not he had any permission to do anything. MR. BOURS: I offer Respondents 3.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 iPad. Q BY MR. BOURS: Are you aware of whether or not Deputy Johnson THE COURT: Ill receive it. No objection. (The document marked for
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MR. KIMBERLIN:
investigated an iPad or some form of tablet computer in Mr. Kimberlins possession for whether it had a photograph on it? A Im unaware -- I am aware that in the incident report
there is some discussion of an iPad that -- again, my source is the incident report, but that apparently there was an iPad that Mr. Walker purported -- that Mr. Walker had that was returned to Mr. Kimberlin in the lobby of the courthouse. Q Do you know whether, based on the report of course,
whether it was examined to determine whether -A As far as I can tell, there was no examination of the It was simply one person claimed it was his. Deputy
Johnson had it returned to the person who claimed it was his. Q Is there any indication in the incident report that
there was damage to that iPad? A I didnt see any indication in the report of damage. MR. BOURS: THE COURT: Thats all the questions I have. Any other questions, sir? No further questions.
MR. KIMBERLIN:
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 later. (Witness excused.) MR. KIMBERLIN: THE COURT: May I continue? Who is your next witness? THE COURT: THE WITNESS: All right, sir. Thank you. Thank you very much.
34
Would you like your computer back? MR. BOURS: Yes. I think well plug it in and use it
Yes, sir.
I would like to be my own witness. You can come up, please. You can
Okay.
bring whatever you need. Actually, are you going to be offering those? those exhibits and so forth that you will be offering? MR. KIMBERLIN: THE COURT: Maybe. I dont know yet. Are
from there because I dont want you jumping up and down off the witness stand and running around to get things marked and so forth. MR. KIMBERLIN: THE COURT: MR. BOURS: Okay. Thats better.
Any objection from you, Mr. Bours? Maybe at the time of cross-examination,
it would be better for him to be there, but for right now I dont have a problem with it. THE COURT: but as for now. For cross, hell be on the witness stand,
35
the petitioner, having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION Sir, you have applied for a peace order This is a trial de novo, as if it
didnt happen in the District Court. THE WITNESS: THE COURT: Right. So why is it that you believe you should
have a peace order issued against this man? THE WITNESS: Mr. Walker has been harassing me,
bullying me, inciting others to do -THE COURT: You can have a seat. You dont have to
Inciting others to do that -MR. BOURS: Excuse me. I have to object the kind of
conclusory and unsupported -THE COURT: Yes. I sustain the objection. You have
one says that one was harassed, thats a conclusory term. THE WITNESS: THE COURT: Okay. One has to say that he kept shooting a
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
36 water gun in my face, or pulling my hair, or whatever it is he was doing. THE WITNESS: THE COURT: Okay. Presumably, youre not going to say those The
reason that this case is here, is for the Court to determine whether or not what, in fact, occurred was harassment. Go ahead. THE WITNESS: MR. BOURS: All right. Judge, if we could, the peace order
statute requires that the testimony to the material must be something that happened within 30 days of January 9th. In
other words, the Court has no authority to grant a peace order for something that happened in 2005 or 2007, or even August of last year. This peace order was applied for on January 9th. It
does somewhat specifically deal with something that happened on January 9th, but if it would help, I have a feeling Mr. Kimberlin wants to try to talk about things that happened -THE COURT: Yes. It will shorten this proceeding and That is a statutory
requirement and its a pretty obvious reason why thats in the statute, so that we dont have people coming to court testifying regarding things that happened a year ago, or six months ago, or two years ago.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
37 So whatever youre going to testify that he did, it must have occurred between December 9th and January 9th. THE WITNESS: I mean I feel like I have to give a
little background, just a slight little background, not way back. Just a little background. THE COURT: consider that. THE WITNESS: Well, I mean one of the things I have He said that Very little background because I cant
Mr. Walker only got involved with me or my issues in December of 2011. Really what started this inquiry into Mr. Walker was I had, as stated, I had a civil case against a stalker named Seth Allen that resulted in a judgment and also resulted in a peace order against Mr. Allen. The reason that I got a peace
order against Mr. Allen was that he had written, on August 23rd, an e-mail to Mr. Walker and in that e-mail -MR. BOURS: THE COURT: Object. Yes. Im going to sustain that.
What you need to understand is that if he did what he is alleged to have done, between December 9th and January 9th, and the evidence is clear and convincing, then a peace order will issue even if there was no background. matter. It wouldnt
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issued.
38 It doesnt matter whether you had a history with him A peace order
So its not important and this is a Court trial, not a jury trial. The Court is not going to be influenced by any You could have a mortal enemy
living right next door and have no contact with that person. THE WITNESS: Well, I just wanted to get to how Mr.
Walker got involved with this case or how he -THE COURT: But you dont do that in your testimony.
If you want to talk about it in closing argument or something, fine, but Im not going to have you just correct Mr. Bours. You dont have to do that. THE WITNESS: THE COURT: Okay. What he said wasnt evidence. What Mr.
Bours said and what you said in your opening statements, thats not evidence. going to show. Thats just what the parties believe the case is Now you have to show what you said you believe
it was going to show, but it has to have occurred between December 9th and January 9th. THE WITNESS: On or about December 20th, I wrote to
Mr. Walker, who I believed at the time was named Aaron Worthing, an e-mail asking if he would cooperate in providing some information about a stalker that I had sued in Judge Jordans court named Seth Allen. Mr. Walker responded --
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can -THE COURT: I cant consider what you read. These Web. MR. BOURS: THE COURT: THE WITNESS: Object. Sustained. Thats hearsay.
39
response where he posted on his blog, Allergic to Bull, that Brett Kimberlin, convicted terrorist and perjurer -MR. BOURS: THE WITNESS: MR. BOURS: THE WITNESS: his harassment of me. THE COURT: Okay. Understand something. In this Object. Your Honor, I object.
This is something I read. This is not self-authenticating. This is something I read and it shows
book, Subtitle 5, these are the rules of evidence that this Court is governed by. People in the public think that if you
get something off the Web, all of a sudden its admissible in court. It couldnt be further from the truth. It still has to
be authenticated, like any other document. THE WITNESS: THE COURT: All right. Spiderman could be putting stuff on the
authenticate that. THE WITNESS: Well, I can tell you what I read and I
rules of evidence have been tested over time and they are there to protect you as well as people who are accused of doing
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stand. THE COURT: Okay. things. THE WITNESS: All right. Well, when Mr. Walker
40
testifies, then Ill ask him if he wrote these. THE COURT: to try the case. THE WITNESS: Thats the only way I can get it in. Thats up to you. I cant tell you how
So I asked Mr. Walker if he would provide information about Mr. Allen and we had a -- there was a hearing set in Mr. Allens case for January 9th. During the period of December
20th and January 9th, Mr. Walker secured the assistance of an attorney. Of course, I -MR. BOURS: I think thats conclusory, too. I mean
he can provide evidence of that, but I dont see that hes authenticated that either, that is to who did what. THE COURT: Let me just ask you a question. What did
this gentleman do to you and when did he do it? THE WITNESS: me terrible names and -THE COURT: terrible -THE WITNESS: THE COURT: THE WITNESS: On his blog. How can you prove he did that? Well, I prove it when he gets on the Where was he when he called you Im trying to explain that. He called
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 filed question. it? THE WITNESS: publishes the blog. THE COURT: Its his blog. He owns the blog. THE WITNESS: Its his blog. I mean he admitted that he did it. But he was writing all
41
this terrible stuff on his blog about me. THE COURT: How can you prove that? How can you
prove that his cousin wasnt sitting in his living room at his computer writing that? THE WITNESS: THE COURT: Because he said he did it. The answer to truth is because he said
He
computer was not done by my daughter, sitting at my house, typing it on my computer? THE WITNESS: How can you prove that?
-- the brief that he filed in Judge Rupps court, he It says, I respond to Brett Kimberlins motion Thats what he said. Thats --
THE COURT:
whom Im not, did something, sit right here now and type it online, post it, and somebody gets it offline, makes a copy of it, you think they can take that to court that I wrote, saying Im Mr. Kimberlin, they can take that to court and prove that you wrote that?
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 moment? THE COURT: Sure. online. THE WITNESS: MR. BOURS: I know. I dont have to. lawsuit. THE WITNESS: THE COURT: Uh-huh. somebody. THE WITNESS: THE COURT: Yes. This is a lawsuit. You brought a THE WITNESS:
he admitted that he did it. THE COURT: You dont understand something. You sued
allege in your lawsuit and you need some evidence independent of He admitted he did it. Even a criminal lawyer in a room A States
Attorney cant come in here and say, Judge, this guy is guilty because he said he did it. THE WITNESS: THE COURT: You need more than that.
Judge, you asked me what he did to me. Youre telling me something about online. How is this man harassing
I want to know what he did to you. you? THE WITNESS: THE COURT: Okay.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this? THE WITNESS: MR. BOURS: I dont have to read whats online.
43
in its scope and what it says is that he may be entitled to a peace order if he can show harassment under the criminal law article, not some vague feeling of harassment or not liking whats being written about him. But under the Criminal Law Article, Section 3-803, there are elements to the crime of harassment in Maryland law. What hes got to show, between December 9, roughly, and January 9, is that Mr. Walker did the things described in the criminal law article, not that theres a post, or e-mails, or anything else. Hes got to show whats in that article. Its
subsection A. THE COURT: Excuse me. Mr. Bours, would you give him He thinks the Court is
I have to follow the law. MR. BOURS: Actually, I would give him both because 3-802 is stalking
under the Criminal Law Article and 3-803 is the harassment statute. THE COURT: But let him read that. If he did any of those things that It
are listed there in that section, any of those things. cant be just something thats annoying someone.
It has to be
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one of those things thats listed in that law, otherwise different judges would be making different decisions willy nilly based on whether or not the judge found that it was harassment.
44
Thats the reason that the legislature said, Look, if youre going to get a peace order for harassment, then the elements of harassment will be those elements that are defined in the Criminal Law Article, those things. So I have to find
that he did one of those things or more than one. THE WITNESS: THE COURT: THE WITNESS: THE COURT: he did it and where. THE WITNESS: Lets talk about it. All right. Did he do any of that? Yes, he did. Okay. Well, lets talk about that, when
A person may not follow another in or about a public place and maliciously engage in a course of conduct that alarms or seriously annoys another with the intent to harass, alarm, or annoy another. Thats what he did. Please keep going. Yes. Read the rest, sir.
stop by or on the defendant and without legal purpose. section does not apply to peaceable activity intended to express political view or provide information to others.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Court. In short, the judge allowed him to seal the motion which identified him, asked him to sit in the spectators him -MR. BOURS: THE COURT: THE WITNESS: Object. Sustained. I have the transcript here. case. statute? THE WITNESS: THE COURT: THE WITNESS: THE COURT: THE WITNESS: He came to court -When? On January 9th. Okay. Go ahead. person who violates this section is guilty of a misdemeanor, dah, dah, dah. THE COURT: THE WITNESS: THE COURT: Okay. Okay. So --
45
He had not filed his appearance in the He was not subpoenaed He asked to make an
in the case.
emergency motion to seal a document that I had filed in court identifying him as Aaron Walker rather than Aaron Worthing. put enough information in my filing in the court to identify him so that he could not say that he was not Aaron Walker. He came into the court. The judge was taken aback by I
I can show
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 heard. THE COURT: Dont characterize it. THE WITNESS: Okay. Mr. Walker said that he was You need to say exactly what he said. whatever. seating. Mr. Walker kept objecting -MR. BOURS: THE COURT: Object. Ill sustain that. He can object to
46
That has nothing to do with you. THE WITNESS: Well, the judge told him if he kept
objecting, he would have the sheriff remove him. Mr. Walker -- When the hearing ended, Mr. Walker followed me outside the courtroom and told me that he was going to continue harassing me. MR. BOURS: He --
at least to give quotes of what was said as opposed to characterizations? THE WITNESS: I heard Mr. -- okay. Ill say what I
going to continue harassing me. THE COURT: Well, I dont think he said he was going He didnt speak in those terms. Quote him.
to continue harassing you. What did he say? THE WITNESS: Then as we -THE COURT:
Mr. Walker
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 continue -- he said, quote, I what? THE WITNESS: I am going to continue to harass, expose, something about that. you, something to that effect.
47
Maybe it was bothering, exposing, something to that effect. And as we exited the two doors, he said, You abused the court process by using subpoenas to identify me. As we continued to exit the second door, he got very loud and I felt threatened by his aggressive behavior toward me. I backed up. I backed up more and more. Finally, I
pulled out my iPad because I wanted to document the fact that he was coming at me. As I lifted my iPad, Mr. Walker came to me with his -- with his hand and hit me in the eye, or the face. continued to come at me and wrestled with me for my iPad. Fearing that my iPad would be destroyed from Mr. Walkers conduct, I finally released it and I heard someone come behind me, out of the courtroom, saying, He attacked him, he attacked him. Two courtroom staff came running out of the courtroom and told Mr. Walker to get away from me, and they called the police. The -- within a very short time, eight or nine He
deputies came up to the ninth floor and Mr. Walker had my iPad still. him. He -- the deputy went over and took the iPad away from I told the deputies that he had struck me, assaulted me.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
48 They advised me to go to the commissioners office and get a -press assault charges and to get a peace order against Mr. Walker. Thats what happened on January 9th. I did that. First of
all, after that incident, I had a very distinct problem with my eyes. I had blurry vision in my eyes and -MR. BOURS: THE COURT: MR. BOURS: medical diagnosis. Object. Whats the basis of that? It sounds like hes trying to give a There are proper ways to do that. But I
think all hes entitled to state is what my client did to him, not what it caused. THE COURT: peace order. THE WITNESS: Well, I ended up at the hospital. I Yes. There are no damages awarded in a
ended up at Suburban Hospital for six hours. THE COURT: I mean you understand you dont get
damages in a peace order. THE WITNESS: THE COURT: THE WITNESS: Im not asking for damages right now. But go ahead. Im saying what happened. I had a
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you said? THE COURT: THE WITNESS: Yes. So I had -- I was assaulted. said. THE WITNESS: THE COURT: Sustained.
emergency ward at Suburban Hospital where I went there and was there for approximately six hours, and had a CAT Scan, multiple other evaluations -MR. BOURS: THE COURT: Judge, I object again. I sustain that.
You see, that has nothing to do with whether a peace order is granted or not. THE WITNESS: Youre going to sustain the objection
I was --
from my iPad and I would like to introduce that into evidence. THE COURT: THE WITNESS: corresponds -THE COURT: Taking pictures in a courthouse is Well, Ill receive it. And I would like to show how it
illegal, but if you want to offer that up, Ill receive it. THE WITNESS: Yeah. Id like to. I mean I was
taking a picture to protect myself. (The photograph was marked for identification as Plaintiff's Exhibit
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BOURS: these? THE COURT: THE WITNESS: No. 2 was received in evidence.)
50
I introduced into evidence earlier, the same -- you can see also the picture of the hand coming towards me, hitting me. The following day, I took pictures of the black eye that I had. I would like to introduce these, too. You have to have an item marked before I
what it is that the Court is considering. What are those, 4 and 5? (The photographs were marked for identification as Defendant's Exhibit Nos. 4 and 5.) Judge, I think he does need to testify as
to each exhibit before they are admitted, not just hand them up. THE COURT: THE WITNESS: evidence the exhibits. THE COURT: THE WITNESS: THE COURT: What is the number of the exhibit? Exhibit No. 4. What is No. 4? He hasnt offered them yet. Okay. Id like to offer them into
51
Walkers hand coming towards my face. THE COURT: THE WITNESS: What is No. 5? Its a picture of the day after the
event, a picture of my black eye from the assault. MR. BOURS: THE COURT: I object to that. Okay. You can have a seat. Youre
testifying now, so have a seat. Ill reserve on that. What else happened on that day? THE WITNESS: So on that day, thats what happened.
I spent my evening in the hospital. And since then, Mr. Walker has been engaged in a campaign, up until the peace order was issued in this case, Your Honor, in a campaign against me. MR. BOURS: THE COURT: what he did. THE WITNESS: Okay. Mr. Walker filed a criminal Object to the characterization. Sustained. You have to testify as to
charge against me, which the District Attorney dismissed without even -MR. BOURS: THE COURT: THE WITNESS: Object. Object.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 relevant. THE COURT: THE WITNESS: Sustained. Its not. Sustained. annoyance. THE COURT: You can testify that somebody came to with it. case. THE WITNESS: Well, he sent the police out to my MR. BOURS: THE COURT: Object. Sustained, sir.
52
house to serve Mr. Ralhouser. MR. BOURS: THE COURT: THE WITNESS: Object. Well -Thats harassment. I mean its
your house, but you cant testify as to what he told them or -THE WITNESS: Okay. Three deputies showed up at my
house to serve a peace order on Neil Ralhouser and I told them Neil Ralhouser has never even been to my house. MR. BOURS: Your Honor, I object. Mr. Walker --
hearing on Mr. Ralhouser and told the judge what happened, she, she threw out the peace order against Mr. Ralhouser. MR. BOURS: THE COURT: THE WITNESS: Object. Sustained. Then Mr. Worthing engaged, again, in a
53
That objection is going to sustain every time you characterize things like engaged in a campaign. If you try
to stick to what that statute says, you wont be drawing objections. THE WITNESS: against me in Virginia. MR. BOURS: THE WITNESS: THE COURT: against you. Object. Heres a copy. I have no doubt that he filed a lawsuit Mr. Walker filed a $66,000,000 lawsuit
what does that have to do with this case? THE WITNESS: Well, its retaliation. Its just
because I filed a peace order against him. charges against him. its about.
So thats what Mr. Walker has done. THE COURT: THE WITNESS: THE COURT: THE WITNESS: THE COURT: Sir, at Docket Entry No. 1 -Right. -- in this file -Yes. -- you have a petition for a peace order.
54
the Court will take judicial notice of its own pleadings in Case No. ending in 8444, and what you have alleged and what you have to prove, and the only thing you have to prove, is this. In paragraph 1, the details of what happened are described as follows, and the instructions on the form are be as specific as you can. What you wrote is, Mr. Walker assaulted me while He hit me in the face, chest, and
shoulder, and took my iPad, and threatened to -MR. BOURS: THE COURT: you need to prove. I believe that says to harass me more. Harass me more. Thats the limit of what
that is why this case is here. THE WITNESS: THE COURT: I think I -So do you have any other testimony as
regards that, because thats what you went to court for? THE WITNESS: Ive proven that. Yeah. And thats -- I believe that It resulted in injuries.
He assaulted me.
I went to the hospital. THE COURT: On the form, it also lists, you have to
indicate whether there was kicking, punching, choking, slapping, shooting, rape, or other things, hitting, stabbing, shoving, threats, and you checked shoving, threats of violence, harassment, and stalking. I dont know about stalking, but you
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to that?
55 checked those things and you have testified that he did those things. Is there anything else that he did on that day? THE WITNESS: THE COURT: Not on January 9th. Okay. You understand that youre limited Thats all the Court
can consider is what happened on that day and thats what this appeal is from. Had the complaint alleged some of the conduct that you have testified that he engaged in, that would be one thing. I could consider it. But you dont allege it. Its not there.
Its a trial de novo, but its not a trial de novo to go back and bring up all the things that are not in the complaint, that you didnt file. Its a trial de novo on the case below. You
cant add things when you come up here that are not in the file below. Now if there were things in here, but they were not argued or were not mentioned, but they are in the complaint, you wouldnt be prohibited from bringing up those things. Lawyers often bring up things in Circuit Court in a trial de novo that they realize that they didnt argue, or didnt articulate, or didnt point out to the court in trial below, but you dont have that here. So is there anything else about that day that you wish to testify to before I allow Mr. Bours to cross, if he has
56
youve seen the pictures, I would like to describe in the one picture where his hand came towards me, which is on the Court -THE COURT: THE WITNESS: the police. I saw that. And also the fact that I didnt call
Someone else called the police to come up. Object to that. Ill sustain the objection.
Clearly in the photographs, the sheriffs are here. THE WITNESS: THE COURT: Because -There are cameras in the courthouse. Theyre being watched all the
They dont need to be called. time -THE WITNESS: THE COURT: right there. Right.
Theres one
didnt need to be called, but its lunch time, gentlemen. THE WITNESS: THE COURT: Oh boy. So why dont we take a break, have lunch,
come back, and well finish up when we come back from lunch. No witnesses in this case. There was a rule on
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q BY MR. BOURS: Thanks. or with anyone else about their testimony. You can leave that unless you want to work on it.
57
mean, Mr. Bours, you can leave anything in the courtroom that you want to leave. MR. BOURS: Judge, what Im going to do is Im going
to leave with the clerk just so I wont be carrying this around all day. THE COURT: THE BAILIFF: (Recess) THE COURT: Thank you. Hope you had a good lunch. It will be locked. All rise. The Court is in recess.
Have a seat, please. Are you ready to proceed, Mr. Bours? MR. BOURS: Yes. I believe Mr. Kimberlin is finished
on his direct examination. THE COURT: MR. BOURS: Okay. Please. CROSS-EXAMINATION Do you want him to take the stand?
Sir, if you would, please, you may just simply turn You are not required to refer to them.
If you need to refresh your recollection about something in order to give an answer, say so before you look at documents. First thing I want to ask you is, I notice that you brought with you this laptop of some sort. Its an Apple
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 product, is it not? A Q A Q Yes, sir. Is that called an iBook? No. Thats a MacBook. The MacBook is actually like a laptop
58
A MacBook.
computer, is that correct? A Q A Q A Q Yes, sir. Its different from an iPad? Yes, sir. Did you bring the iPad with you today? No, sir. You did have an iPad with you on January 9th, though,
when you appeared before Judge Rupp on motions, is that correct? A Q Yes, sir. Yes, sir.
January 9th? A Well, there were notes in there that I had taken for
the court proceedings. Q A Pardon me? There were notes in the iPad that I had taken for the
court proceedings and its very easy to carry. Q A But did you bring this MacBook? No. The reason I brought that today was because it
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that video is a strange video and I could not get it on the iPad. Q A Q Okay. So I brought -- I loaded it on this one.
59
Now the iPad you brought with you on January 9th had
a camera in it, correct? A Q Yes, sir. Tell the Court physically how you operate that camera
from the iPad. A Q Its just one button. Just one button.
activates the camera? A I believe so. Its -- the camera is actually a part
of the iPad and so if you just hold the iPad up, and you dont have to even focus it or anything. and it takes the picture. Q So are you saying on the iPad, when you push the You just push the button
button on the iPad -A Q A On the i --- it actually takes the picture? Well, I mean if its on. Right. You just push the icon and
it takes a picture. Q
of Judge Rupp that day, correct? A Q right? A I believe I had it on during the proceedings, yeah, The Excuse me? The proceedings had completely finished, is that
iPad that I had has a cover that closes and puts it to -- its kind of to sleep when its closed. on, but the cover was closed. Q So the iPad was technically
So in other words --
against Mr. Allen or a contempt citation against Mr. Allen, the defendant in that case, for continuing to interfere with your business and -A Q And for violation of the court order. Uh-huh.
didnt you ask that the identity of Aaron Worthing be established so you could subpoena him as a witness? A Q Yes, I did. Then you learned who Aaron Worthing was, the blogger
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that? A Q A Q A Q A Q with it? A I tried to verify it. I did Google searches and I learned it on December 31st. How? I got a tip, anonymous tip. Aaron Worthing was, is that correct? A Q Not through the court proceedings. I understand that, but how and when did you learn
61
An anonymous tip via the internet, e-mail, or what? Yes. It was actually by phone.
By telephone? Uh-huh. After you received that information, what did you do
tried to verify that, in fact, Mr. Walker was Aaron Worthing and vice versa, and I was able to locate a bunch of -- a lot of documents online that made me comfortable that Aaron Walker was actually Aaron Worthing. Q Pending before the Court, in that civil action
against Mr. Allen, was a motion to require Google to disclose the identity of Mr. Worthing, is that correct? A Q Right. Right.
you filed a request to withdraw that motion, is that right? A Yes, because I had already learned the information.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I didnt want to take up the Courts time with a motion that was basically moot. Q
62
that information in your motion, didnt you? A Not all of it. I have a lot more information that I
worked, where he went to school, and things like that so that there would be no question that he was that person. Q Thats what you say your motive was, but, in fact,
that put it in a public record, is that correct? A Q Well, its a court case. And you knew that that made it public by your filing
attorney named Kingsley, had filed an opposition to disclosure of his identity, had he not? A Q A Q Its a she. Worthing. Okay. Through Beth Kingsley, a motion had been filed Kingsley is a she. Lets assume Worthing is a he.
opposing the disclosure of his true identity, correct? A Right. And the judge was going to have a -- I
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
63 the 9th and because I found out that information through other means and verified that information through online sources -Q Kimberlin. A Q Okay. You were trying to find out the identity through That was being opposed by an attorney named This is really kind of a simple proposition, Mr.
court processes.
Beth Kingsley on -A Q A Q A Q Right. -- behalf of the anonymous blogger Aaron Worthing. Right. That was all going on. Right. In other words, they were opposing the identity being
revealed, correct? A Q A to quash. Q So then you filed in the jacket all the identifying Right. And opposing your subpoena for him to be a witness. Yeah. Thats basically the motion. It was a motion
information about him and you withdrew the motion before Judge Rupp, is that correct? A Yeah. I -- yeah. I let the judge know that it was
moot and this is why. Q You agree, I think you even said on your direct, that
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you? A No. He was -- he was being an aggressor. He was iPad. A Yeah. I did take a photograph. I did take a this gentleman to my left came to court and asked that your
64
motion to withdraw be sealed because it contained his identity, correct? A Q Yes. And the judge granted that motion.
But you still had your iPad with you and you tried to
take a photograph of him outside the courtroom, didnt you? A taken -Q Well, you did try to take a photograph with your Thats not the series of events. I would not have
photograph. Q A Q Its the one you put in evidence. Exactly. You claim you took that only because he was attacking
verbally aggressive and physically aggressive toward me, and he was coming at me, and I felt that in order to memorialize that aggressive behavior, I took a picture. And Im very well aware
of the rule requiring -- I mean prohibiting photos in the courthouse and so -Q A You are now or you were then? No. Of course I was then.
cc
1
65
told them that I had taken a picture, and -Q Let's stop here because
I
3 4
5 6
January 9th is the first day you ever saw this gentleman to my left in person, is that correct?
A
Yes. You had never seen a picture of him, had you, on his
7
8
9
No.
10 11 12 13 14
15
him have been in connection with court proceedings either you or he filed, correct?
A
Yes. Based on what you found out about him December 31st,
16
17
18
Yes, sir. Just state for the record your home address, where
19 20 21
22
live in Bethesda.
Q
A
23 24
25
1111111111111111111111.,
Bethesda, Maryland.
Q
A
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q Where is that? Its in Cabin John, Maryland. In Cabin John and not Washington, D.C.? No. Well, when you asked for protection through this
66
peace order, you left it open that he couldnt see you anywhere, is that correct? A Well, I mean that was actually because the
commissioner -- I believe it was the commissioner or the judge, one of the two, suggested that that would be a good thing to do. Q But other than in courtrooms or court settings
involving legal proceedings, youve never seen this gentleman to my left at all, right? A Q Never. He, to your knowledge, has never followed you around
in a public place other than the limited time that you saw him here on January 9th where he came out of the courtroom behind you, correct? A Q A Q No. Hes done a lot of blogging about me. Im talking about in person.
time that he has followed you in a public place, correct? A Well, I dont know. I really dont know.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know. online. Q did that? A Q A Q That he followed me? Yes. No. I can say -Do you have any witnesses here who can say that he
67
Before the judge showed you the book today that had
the statutes about stalking and harassment under the Criminal Code, had you ever read those before? A Q Yes. Uh-huh.
the statute. A Well, within the meaning of the statute, I dont I just know that he has bullied me. Hes harassed me Hes called me
terrible names. Q Well, the terrible things hes written about you deal
with your criminal background, correct? A Q No, not necessarily. I mean if he calls me human --
talked about? A a father. If he calls me human filth, Im not human filth. Im a husband. Im the director of a nonprofit. Thats what he called Im
68
well find out, okay. Q Sir, what Im asking you is did you ever see him do
any of the acts that are described in the statute on stalking? A Q The statute on harassment. So you admit there is no stalking within the meaning
of that statute? A Well, possibly. I didnt say that -- when I read the
statute over here a minute ago, I said that he had met the harassment statute. Q Do you have any other testimony yourself or any
witnesses here about the other elements of the statute on harassment? A Q A The other elements? Yes. You mean by the fact that he followed me in a public
place, and he assaulted me in a public place, and that he retaliated against me after that with -Q No. I mean did you read the statute today and do you
have any other evidence to offer about those issues? A Any other evidence other than the fact that he
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
69 observation, things you saw or heard in person, not things you read on a Web site or anything else. A Like I said, Mr. Walker assaulted me, followed me out
of the courtroom, and attacked me. Q In connection with the assault, will you tell this Give us a concise,
but complete statement of the ways in which he assaulted you on January 9th. A Well, as I said, he -- when he came out of the
courtroom, he was berating me with comments, and being aggressive, and coming toward me. And I felt threatened, so I
pulled the iPad out to catch him, because I could see that he was getting ready to actually physically hit me, and I backed up and clicked the picture. I got his hand as it was coming
toward me and it hit me some -- somehow it hit me in the eye. I mean everything happened very quickly. And he started
wrestling with me and I felt bumps on my side, my chest, and my back twisted. And hes wrestling me for the iPad and he actually took the iPad away from me. And I didnt want to struggle with
the iPad too much because I was afraid it would break, and my kids use that iPad a lot and I didnt want to disappoint them, so I let it go. Q A And he -- then the man --
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 us? A Q did next. Exactly. Yeah. fist. Q Q A Q A Did he knock you down? No. He hit me.
70
He hit you? Well, his hand hit me. His hand hit me. Whether it
was his fingers or his hand like this, I dont know, but I -Q A Are you claiming that he hit you with his fist? No. I dont know if it was -- I cant say it was a
I can say it was a hand. Isnt it really a fact that he was just holding up
his hand so you couldnt take a photograph of him? A Q from you? A Q A Q A Q No, sir. I -- no, sir. Not at all. Absolutely not. Absolutely not.
And then he grabbed the iPad from you and walked away
Now youve apparently watched the video? Yes. Do you claim the video supports what youve just told
Lets take it in order, after this happened, what you Are you telling us the sheriffs suggested that you
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court. And I mean there was more of a conversation but basically they escorted me to -Q Q
they didnt see it? A No. When they came up, I -- when they came up from
the elevator, I met them, and walked them over, and I pointed to Mr. Walker. I said, that man hit me, and hes got my iPad, and can you arrest him for assault. And they said, well, we didnt see it. arrest him for assault right now. commissioners office. I said, well, wheres the commissioners office. And they said, its across the street at the District We cant
But they didnt tell you that they thought you should
do that, they just told you how to do it? A No. They said that if he assaulted -- if he hit me,
then I should go and -Q A Q A You should go? Yes. Because they could --
Not that thats the only recourse you had? Yeah. Because they couldnt arrest him because they Thats what they said.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Okay. I put the exhibit sticker or the clerk has put the Q went over to the new District Court building at 191 East Jefferson? A Q Yes, sir. You dealt with the peace order and the criminal
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charges at the same time? A I believe so. MR. BOURS: Courts indulgence.
BY MR. BOURS: This is going to be Respondents Exhibit No. 4 for For explanation purposes, its a certified
identification.
court record of the District Court of Maryland. (The document referred to was marked as Defendants Exhibit No. 4 for identification.)
exhibit sticker on this page, statement of charges. A Q Uh-huh. I want to ask if the application for statement of
charges is in your handwriting. A Q A Q Yes, it is. Did you sign it on the last page of this exhibit? Yes. Uh-huh.
put in this?
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. Q It had nothing to do with that? A Just, I think, what we were talking about, the
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employment thing, to leave that kind of amorphous. Q A Q A Q This is the application for the criminal charge. Oh. Did anybody tell you what to put in here? No. Not that I know of.
much at the time. Q A Q A Q Did you sign it under oath? Yes. Under the penalties of perjury? Yes. You are the same Brett Kimberlin that was convicted
of perjury back in 1980, correct? A Q Kimberlin? A Q I was a teenager. You were involved in a teenage distribution issue or Yeah. When I was a teenager.
a conspiracy to distribute 10,000 pounds of marijuana, right? A No. That wasnt that. It had nothing to do with
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q No. But it was perjury before the Grand Jury, right? Yeah. It was, like I said, I was 19.
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Nineteen.
circumstances of that 10,000 pounds of marijuana, right? A Q No. That had nothing to do with that.
That was part of your plea bargain was that you were
testifying in front of the Grand Jury. A Q A Q No. No. It had nothing to do with that.
But you were convicted? Of what? Perjury in connection with that and you served time
in jail on that, didnt you? A Q A Q Yeah. As an adult. Eighteen days. You were subsequently involved in this case where
bombs were set off and people were hurt, correct, known as the Speedway Bomb? A Q correct? A Q Yeah. And a man who was injured in those bombings actually Yeah. You were convicted of a number of counts on that,
75
about that. Q You were sued for it and there was $1,000,000
judgment in favor of his widow against you, right? A Q Yes. It was a condition of federal parole that you pay
that judgment, correct? A Q Youre getting into nuances. Well, its not a nuance that your parole was revoked
because you didnt, is that correct? A Q A Q Not exactly, but again -You filed appeals in connection with that, correct? Yes. Ill come back to that. Besides this and the peace order, did you swear under oath to anybody else about the events of January 9th? A Q What do you mean to anyone else? Did you file any other applications, or civil suits,
or anything else involving the events of January 9th? A Q The peace order. Now that same day -- and, by the way, according to
the documentation, it was about 12:39 when you got the charges of assault. A Q Does that sound about right?
Approximately. There wasnt any delay. You had to run across the
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q BY MR. BOURS: guess. Number 5? street. A No. I went straight over there. Judge, Im going to offer Respondents
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but when District Court put together this certification, they included somebody elses case. THE COURT: MR. BOURS: It happens. Dont know how, but this is all part of
one certification and thats the relevance. THE COURT: I see that more times than you would
(The item marked for identification as Defendant's Exhibit No. 4 was received in evidence.)
an e-mail to Beth Kingsley? A Q e-mail? A Q Yes. Uh-huh. The top is irrelevant, Probably. Did you use Justice Through Music as your return on
charges against him for assault and battery and got a peace order against him. Nine deputies had to back him off. He
decked me in the face, hit me in the shoulder and chest, pushed me, grabbed my iPad away from me, and wrestled me. A Q Thats true. You say thats true and thats also what you put in
the e-mail to her, correct? A Right. Uh-huh. I want to offer No. 5. It will be received. (The item marked for identification as Defendants's Exhibit No. 5 was received in evidence.)
attorney, correct? A Q Yes. You also became aware, subsequent to the events of
January 9th, that the States Attorney for Montgomery County was not going to prosecute the criminal case, is that right? A Yeah. Had a long talk with him. They said that
since theres a peace order, that they didnt think that -Q A Excuse me. Okay. Excuse me.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. Q But youre understanding is you never saw the line Q question. A Q Okay. All right. I want to show you an exhibit. Theres no pending
78
Did you
see a copy of this sometime prior to the time when the case was dropped? A Q A Q No. I never saw that.
You never saw it? Uhn-uh. Ill show you what is marked Defendants Exhibit 7
for identification, a certified copy of a motion. A Q A Q A Yeah. So what are you showing me?
But youre saying you never saw No. 6? I dont think I ever saw that. No. I mean I talked
to them and they told me they were dismissing it. Q A Q So -I think that -You styled your pleading Victim Complainant Brett
Kimberlins Motion in Opposition to States Motion to Nolle Prosse this case? A Yeah. They told me they were going to nolle prosse
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q BY MR. BOURS: Mr. Kimberlin, prior to filing that, did you know may. THE COURT: They will be received. (The documents marked for where they said they were nolle prossing it? A No. I never saw that. Judge, Id like to offer 6 and 7, if I
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MR. BOURS:
that the State has a right to drop cases? A Yeah. I had a very long talk with the lady there and
she told me that theres -Q Excuse me. Prior to filing the motion that is part
of No. 7, did you know the State had the absolute right to drop a case? A Q Absolutely. Of course.
opposition to their absolute right to drop the case and put that in a public record, is that correct? A charges. I filed it because I didnt want them to drop the Thats why I filed it. And I felt like I wanted to
get it before a judge and make my case before a judge and I thought that I would be able to have that motion heard. I was
80 also in touch with several people and they said yes, including the victims advocate. I talked at long length with the
victims advocate and she suggested that I file that motion. Q A Q She? Whats her name?
Donna Becker (phonetic sp.). She told you could file an opposition in the court
ongoing campaign, your campaign, to put materials about my client in public records so that other people can look at them and potentially put him in danger? A Oh come on. I -- the States Attorney called me up
and had a long talk with me. Q A Q A Excuse me. Could you answer my question?
Thats totally false. You are putting these things in public records -Thats totally false. She told me -- she actually
told me, she said -Q A Q A She who? The lady that I was talking to, um -Margaret Schweitzer (phonetic sp.)? No. The lady that I was talking to said I could make a plea to Margaret Schweitzer or John McCarthy (phonetic sp.) to
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prosecute, and that I could go to court, and that she would give me time, a whole week, to make my plea, to go to John McCarthy or Schweitzer and make my case.
81
motion was filed within two days after she talked to me. felt like they had misled me. Q A Q Okay. And I did write a long letter -Theres no pending question at this point.
You do admit that, other than court proceedings, you have not seen Mr. Walker any other time? A No. MR. BOURS: Judge, Id like to reserve, potentially,
the right to call him again, but I have no further questions at this time. THE COURT: Very well.
Any other witnesses, sir? MR. KIMBERLIN: I have no other witnesses. I would
just like to make a point about two things that he brought up during the cross. The first has to do with the policy on phones. aware of the -- I mean on photographs. policy before I went to court. Walker in the courtroom. I was aware of the I was
I could have taken it surreptitiously many times, you know, if thats what my motive was.
82 The only picture that I got was that picture of him coming at me with the hand. That certainly -- and the policy Security personnel or
other court personnel may confiscate or retain an electronic device that is used in violation of Maryland Rule 16-110, subject to further order of the Court or until the owner leaves the building. I understood that and when the police came up, I told them that I had taken a picture. I showed them the iPad and They, you know -- Mr. Hes not a court He took it
they did not take the iPad from me. Walker is not a security personnel. personnel. from me.
could have stopped right there and said, Im going to go tell the court personnel that Mr. Kimberlin took a picture or whatever. THE COURT: Hold on a second. Youre into argument
Have you rested your case? No. The other thing that Mr. --
I was trying to --
Okay.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KIMBERLIN:
something to identify Mr. Walker. THE COURT: redirect testimony. Go ahead. REDIRECT EXAMINATION THE WITNESS: Mr. Walker had been involved with Seth For the record, Ill consider this
Allens case for a long time and Judge Jordan issued a court order that allowed me to take further discovery in the form of interrogatories, and I propounded interrogatories to Mr. Aaron Worthing but I couldnt find him. He professed to be an attorney. I didnt know who he was. I looked on all the legal
Martindale-Hubbells and all this, trying to find out who Aaron Worthing was. There was no Aaron Worthing. So thats why I
filed a motion with the Court to order the identity of Mr. Worthing so that I could serve him with the interrogatories that Judge Jordan had ordered and allowed. fact. It had nothing to do with, quote, out him or identify him, or some nefarious purposes that Im being accused of. have never published his name in any way, shape, or form. dont blog myself. blogs myself. right. THE COURT: All right. I dont Tweet myself. I I Thats a simple
I dont comment on
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Any other witnesses? MR. KIMBERLIN: THE COURT: MR. BOURS: No, sir.
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now that the petitioner has not met, even initially, the burden of proof required under the statute. Theres a part of this, I
assume, that hes just completely unaware and theres just been no testimony in support of it. A final peace order requires a
showing that one of the acts that is prohibited under Section 3-1503 has occurred and that its likely to recur. in question is (c)(II). orders. If the judge finds by clear and convincing evidence that the respondent has committed one of the acts in the first statute and is likely to commit in the future an act specified in 3-1503(a) of the subtitle against the petitioner, then you can issue the peace order. Now I dont think you should find, ultimately, that theres clear and convincing evidence that any act, including assault, has occurred. Certainly, theres no proof of The statute
harassment which was the basis of the District Court order under that statute. On top of that, there is absolutely no
evidence at all that this man is likely to commit in the future an act specified in 3-1503. Theres just no testimony at all This is
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
85 a peace order that should never have been issued when you get right down to it. Theres certainly no support for harassment. Its
I put the statute back up there, but -- oh. Courts and Judicial Proceedings, Your Honor. THE COURT: MR. BOURS: 3-15 what? 3-1505(c)(ii).
Im sorry.
This is very different from protective orders in a family case. case. I mean you dont even get one bite in the family
at this point, that the petitioner has not met the required standard of proof in any respect for the Court to issue a peace order. We dont need to go any further. THE COURT: Have you rested? You werent calling any
other witnesses, correct? MR. KIMBERLIN: No. Ive rested, but Id like to
respond to what he just said about future. THE COURT: have you respond. MR. KIMBERLIN: Thank you. I have to let you respond. I cant not
Now he talks about the future and this is not likely The problem with his argument is that following the
January 9th assault, you know, if Mr. Walker had said, I apologize, everything is cool, leave me alone, I leave you alone, fine. Thats all Ive ever asked of him is to just But he didnt. He filed a criminal charge
MR. BOURS:
No objection.
This is argument.
MR. KIMBERLIN:
But hes talking about the future, Its already occurred, you know.
whether its likely to occur. Maybe not an assault, but -THE COURT:
is what is prohibited by 1-503(a), those things that are prohibited in the peace order statute, stalking, annoying. Those are the things that, assault in any degree, an act that places petitioner in fear of serious bodily harm. things. What evidence is there that any of the things that are prohibited in Section 3-1503 is likely to re-occur? If you Those
87 notice, it does not say here that the respondent may not file a lawsuit, may not press criminal charges. prohibited. Those things are not A person
has a right if they want to -- because were not here to litigate the lawsuit. I know you understand what its contents
are, but that civil law case may or may not stand on its own merit even if this proceeding never occurred. MR. KIMBERLIN: THE COURT: No. I know.
procedure like this, from filing a lawsuit. MR. KIMBERLIN: his future conduct. Im not saying that. Im saying that
already Tweeted and blogged that in the last couple of weeks that as soon as this case is dismissed by you, that hes going to come out again after me on his blogs. The only thing thats stopped him is this peace Thats it. Once the judge issued the final peace order The Tweets stopped. All
in this case, the harassment stopped. that stuff stopped, you know.
kids reading about me online from something that happened 34 years ago. I have a right to be a human being. THE COURT: I couldnt prohibit that even if that
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 petition, and said in your petition that the respondent is saying things about you online and exposing your history online.
88
Even if you had said those things, I dont know that this statute would permit this Court to find that to be clear and convincing evidence of violation of the statute. MR. KIMBERLIN: You know, Im saying that this shows I feel a threat from him. I
wife, you know, looking out for him everyday, whether theyre going to see Virginia license plates show up, you know. He
talks about, on his blog, his Second Amendment rights, you know, and how hell invoke them, and how he carries a weapon, and all this stuff. inciting people. Hes got people that comment on his blog that talk about, you know, coming and killing me and stuff like that. And this is what I worry about, him inciting somebody by talking about something that happened 34, 40 years ago, you know, and blaming me just like his lawyer did for outing him, you know, when he had -- it was his blog. It wasnt my blog. didnt publish anything. about him ever. So this is what Im worried about. He published all these things. I This is what I worry about. And him
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have that. JUDGES RULING I have no doubt what youre worried about and I
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understand your concern, but you sound like a very intelligent person. You do understand that the Court must follow the law
and that if any of these things that are prohibited by this statute, not in your language, not in your interpretation of them, but what this book says, any of those things, obviously are prohibited, any of the things that the statute says. A petitioner may seek relief under this subtitle by filing with the Court or with the commissioner, under the circumstances specified in this subtitle, a petition that alleges the commission of any of the following acts against the petitioner by the respondent, if the act occurred within 30 days before the filing of the petition. An act that causes serious bodily harm. We dont
carefully questioned you as regards where his clients hands were, what he did with his hands, and so forth. have an act that caused serious bodily harm. Number two, an act that places the petitioner in fear of imminent serious bodily harm. We dont have that. We dont So we dont
have anything that occurred on January 9th that placed him in fear of imminent serious bodily harm. What, in fact, was done
is that, for the record, Ill say a camera device or a device capable of taking a photograph was snatched away from the
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say, parenthetically, that Ill come back to the assault, because technically snatching your iPad out of your hand is an assault. Ill come back to that. So that did occur.
Im not going to address rape, sexual offense, and so Theres clearly no evidence of that and its not
present here. False imprisonment. leaving a place. Stalking. Following a person one time out of a You werent prohibited from
building or out of a room certainly doesnt constitute stalking. If it did, we would need a whole docket to deal with Stalking is more than that. Stalking is a
persistent pattern of conduct which involves following someone or showing up where they are for no apparent reason other than the fact that that person is present. Trespass. public place. So we dont have that.
wasnt slammed to the floor, or like the fellow did down in Alabama, there was no bullet fired through a computer or anything. It was just taken from the respondent and given back
to its rightful owner, the petitioner, here in the court. The contents of the petition shall be under oath and
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they shall allege that some of that conduct that I just read occurred. What occurred?
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If this was an assault trial, perhaps the evidence would be sufficient beyond a reasonable doubt, without addressing possible defenses, that an assault did occur. Obviously That
wrestling something from somebody, he assaulted you. occurred. He did. He assaulted you. He also hit me. Assume arguendo that that
Okay.
occurred, but your own testimony would suggest that that touching, you said with the hand, or a thumb, or some part of his hand, you dont remember exactly which, but that happened in the course of this what I would refer to was a melee, which he was attempting to take your iPad from you. So that evidence
is clear and convincing, but the Court needs to find more than that. The Court needs to find that theres evidence that hes going to do this again. a crystal ball. Well, first of all, we dont have Theres no evidence to suggest The evidence that you
We dont know.
testified about and that you argued that the respondent did may be annoying. Some of it may even violate other statutes that Im not suggesting that they do, Weve
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is.
92 reached a point in this society where people think they have a right not to be offended. Where did that come from? You read
Where is the right not to be offended? So theres a lot of annoying conduct that perhaps
might be rude and would cause Emily Post to turn over in her grave. I dont know if shes still alive or not, but
manners -- and just for the record, I am not suggesting that the respondent doesnt have proper manners or anything like that. But what I am saying are examples of annoying conduct,
things that people can do that are just annoying. This Court doesnt blog. I dont even know what it
even read one since I dont know what it is, but I can imagine it is a medium in which published material can be made available to the public. I can imagine that a blog might be
likened to a magazine except that its electronic and its not on paper, unless of course its printed out. You say that things have been written about you that are not right. It is a dangerous, dangerous argument to make
that a sanction should be entered against people when they choose to exercise their First Amendment constitutional rights just because its annoying. Now let me say, parenthetically, there are civil
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
93 remedies available if someone defames someone, however, truth is a defense. So if a person says somebody has a record and, in fact, they do have a record, youll have a hard time getting a judgment in a libel or slander case. If someone said someone
had a record for something that, in fact, they didnt do that was, in fact, false and it caused the individual harm, then they perhaps would have a cause of action. So the bottom line is this. The advice that was
given to you or the suggestion that was made to you, if it were -- it probably wasnt advice -- that if you felt that these things which occurred to you was conduct by the respondent from which you could be protected by a peace order, you should go to court, that was proper. There was nothing wrong with you filing a petition for a peace order. There was nothing wrong with you coming to It was
court to tell a court what occurred and seek a remedy. nothing with that. There was nothing wrong with your
attempting to link this conduct, which you believed would come under the statute, to your evidence why you should get a peace order. Nothing wrong with that at all. Nothing wrong with it.
In fact, it would be foolish had you come to court and not attempted those things. come within the statute. Assume arguendo, for purposes of this ruling, that The only problem with it is it doesnt
the Court is not finding in any way that the conduct that you allege occurred did not occur. Dont have to reach that.
Dont have to go to the blogs, and to the Tweets, and to all of that. Dont have to consider it at all because its not
prohibited by the statute. Its just not. If it were, maybe we wouldnt even be
By the way, I didnt ask you if your client consented because I think I knew the answer. So Im taking this time, sir, to explain these things to you to perhaps help you in any future decision that you make with respect to how you believe youve been aggrieved. I dont
want you to leave court with the notion that the Court doesnt find it credible or any of those things. Its not that at all.
Its just that what I just read to you is what I have to find. One of the factors that the Court could find existed for you to get a peace order is the assault. The problem with
that is there is not one scintilla of evidence that that will occur again. In fact, but for the fact that you had the
camera, its not a camera but an iPad with a camera, but for the fact that you had that, the assault may not have happened at all.
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So unless theres an attempt to take his picture, hypothetically, when he walks out of this courtroom, which I
95
dont think is going to occur -- well, hes going to walk out of the courtroom. taking a picture. again. I think this respondent, and I havent heard from him, but I think he, like you, probably would have rather been some place else today doing something else, and Im sure he probably would have also. Youve spent a day away from your I dont mean that not occur, but I mean Theres no evidence that hes going to do it
office, away from doing what you were doing, for legitimate reasons. This is the way we want people to settle disputes. We want them to present their
We want them to come into court. case, but thats not all.
Courts ruling, both of you, and to live by it. You came to court seeking relief because you believed the evidence was sufficient to grant it and now after a full blown hearing and explanation, perhaps ad nauseam, you should now understand why this case, these facts, do not entitle a person to the issuance of a peace order. It is in that category of situations that I often tell people, not just you and not just the respondent in this case, is that the Court cannot grant a remedy to individuals who are subjected to every kind of annoying conduct there is that people could do. We just cant.
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statute has only been around a short period of time. Legislature came up with this peace order and we have a tremendous amount of litigation, tremendous amount, with these statutes because people read them the way you do, that if youre annoyed and if a person does something that you believe is harassing, that you can get a peace order. You probably
know now more about the peace order statute than you ever wanted to know about it or care about it, but going forward, I hope it places you in a better position. I hope it places the respondent in a better position also, because he also now knows the kind of conduct, if you engage in it, could land you in court at a hearing like this. So I think Ive taken the time to answer some of the things Ive said to you were because of things that you testified to which gave me a clue, more than a clue, of how you believe this statute works and I wanted you to go away with the full understanding of how the statute works, and that the Court is not sanctioning anything that happened here, but it just doesnt come under the parameters that the legislature has set for issuance of a peace order, and for very good reasons. All right, gentlemen. give both of you a copy of this. thank all three of you. Give them a copy. Thank you very much. Ill
cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BOURS:
going to, but I want to put the petitioner on notice that we may ask that the record in this case be sealed, because we are concerned that a purpose behind a lot of what Mr. Kimberlin has done is to identify my client. If hes going to do it by So
referring to court files, we may want this record sealed. Im giving him notice now.
And I will also say this, that if we file a request to seal, we have to send him a copy and Ill send it at the address he gave in his testimony. THE COURT: could be located? MR. BOURS: Thats right. Thats fine. I appreciate that. That was why the questions about where he
MR. KIMBERLIN:
I would note that Mr. Walker has filed a lawsuit against me that says exactly the same stuff. If he wants to
dismiss that lawsuit, I will voluntarily agree to seal this record right now. (The proceedings were concluded.)
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Digitally signed by Michele R. Collyer DIGITALLY SIGNED CERTIFICATE DEPOSITION SERVICES, INC. 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. 8444D BRETT KIMBERLIN v. AARON WALKER
By: