IN THE COURT OF APPEALS OF MARYLAND

BRETT KIMBERLIN, Petitioner v. AARON WALKER, Respondent RESPONDENT’S OPPOSITION TO PETITION FOR CERTIORARI The Respondent, Aaron J. Walker, Esq., pro se, now moves pursuant to MD CODE COURTS AND PROCEDURE §12-305 that this court deny the Petition for Certiorari. In support of this opposition, the Respondent states the following: The Petition for a Writ of Certiorari should be denied because it fails to tell this court the truth about the proceedings below. Given the pro se Petitioner’s long criminal history, including perjury, Kimberlin v. White, 798 F. Supp. 472, 482 (W.D. Tenn. 1992), the Respondent respectfully believes that the attempt to deceive is deliberate. I. The Petitioner Falsely Claimed that the Circuit Court Refused to Allow Him to Call the Respondent as a Witness. The most fundamental dishonesty in the petition is found in the Petitioner’s alleged third question presented, asking this court to consider ―[w]hether the Circuit Court erred in dismissing the Peace Order without allowing Petitioner to question Respondent[.]‖ If this court finds it difficult to believe that any circuit court judge would deny the Petitioner the opportunity to call the Respondent as a witness that is because it is not true. One would search the transcript below (attached as Exhibit A) in vain for any moment in the hearing Case No.

where the Petitioner asked to call the Respondent as a witness.

The Petitioner successfully

managed to call a third party to the stand and the Petitioner called himself to testify, but he made no attempt whatsoever to call the Respondent as a witness. Nor did Judge Eric Johnson make a single statement indicating that he would not allow the Petitioner to do so if he desired. Simply put, he was never denied the opportunity to call the Respondent as a witness: the Petitioner just failed to even try to call him before resting his case. At that point, Reginald Bours III, counsel for the Respondent, said to the court, ―I’m going to ask that you [Judge Johnson] make a finding now that the petitioner has not met, even initially, the burden of proof required under the statute.‖ Transcript, Exhibit A at page 84, lines 4-6. The court agreed and dismissed the petition without requiring the Respondent to even put on a defense. The Petitioner’s case was that frivolous. More than likely, this was a tactical error precipitated by the Petitioner’s own mistaken assumption that the Respondent was required to put on a defense. But even pro se1 Petitioners don’t get a ―do over‖ in circuit court because they don’t know what they are doing. II. The Petitioner Falsely Claimed that the Circuit Court Did Not Allow Him to Present Evidence of Harassment. The other ―questions presented‖ are equally deceptive, but less obviously so. In question one, the Petitioner would have one believe that this court should consider ―[w]hether it was erroneous for the Circuit Court to prohibit evidence of sustained harassment by Respondent

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Any sympathy for the Petitioner’s error should be tempered with the recognition that the Petitioner, Brett Coleman Kimberlin, is an experienced litigant. A search on Lexis or Westlaw for cases where ―Brett Kimberlin‖ is the party reveals that Mr. Kimberlin has sued and been sued hundreds of times, and deeper investigation demonstrates that the Petitioner has often proceeded in those cases pro se, often as a typical ―jailhouse lawyer.‖ See, e.g., Brett C. Kimberlin v. United States Dept. of Justice, 150 F.Supp. 2d 36 (D.C. 2001) (arguing that as a prisoner he had a First Amendment right to play an electric guitar, appearing pro se).

before and after an assault by Respondent[.]‖ In question two, the Petitioner writes that this court should consider ―[w]hether it was erroneous for the Circuit Court to prohibit evidence of Respondent’s repeated post assault retaliatory harassment to demonstrate future harassment.‖ Putting aside the fact that the Respondent never did assault the Petitioner—and the court didn’t find that any assault occurred2—the Petitioner falsely claimed that the Circuit Court refused to consider evidence of harassment. The Petitioner has claimed that various statements about the Petitioner to a general audience by the Respondent about the Petitioner was somehow a threat to the Petitioner. The Respondent runs an internationally-read news and opinion website, and has written numerous pieces about what the Respondent sees as the Petitioner’s abuse of the Maryland court system in an attempt to suppress freedom of expression at his website (available
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The reality is that the Petitioner’s demonstrably false criminal charges against Respondent had been dropped by the State’s Attorney of Montgomery County when video evidence of the incident in which the Respondent allegedly assaulted the Petitioner came to light contradicting the Petitioner’s story. In the end, the Court found that the Petitioner had only made an initial showing of assault in the most technical sense: the Respondent took the Petitioner’s iPad from the Petitioner and then the Respondent peacefully held the device away from the Petitioner until authorities could arrive. Judge Johnson stated the following: ―What occurred? An item was snatched from your hands. 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.‖ Transcript, Exhibit A at page 91 lines 3-6. This does not, contrary to the Petitioner’s claims, constitute a finding that the Respondent assaulted him, precisely because the circuit court didn’t consider any defenses. And any consideration of such defenses—including self-defense—would require the court to examine who the Petitioner is. The petitioner is a convicted violent bomber with a history of turning everyday objects into deadly weapons that have cost one man his life. Kimberlin v. White, 7 F. 3d 527, 528-29 (1993). The Petitioner is also suspected of having masterminded the murder-for-hire of Julia Scyphers after she raised questions about the Petitioner’s relationship with her pre-teen granddaughter. Exhibit B. And the Petitioner is suspected of having attempted more murders-for-hire including the prosecutor in his trials related to his bombings and attempting to frame others for his crimes. Exhibit C. The Respondent was aware of all of this when the alleged assault occurred. By contrast, the Respondent is an attorney in good standing in Virginia and the District of Columbia with nothing on his record more serious than a traffic violation. Thus, contrary to the Petitioner’s suggestion, it is not the Petitioner who should be afraid of the Respondent, but the Respondent who should be apprehensive of the Petitioner, as is the Respondent’s wife.

at http://allergic2bull.blogspot.com/). In order to support his false claim of harassment, the Petitioner sought to introduce writings allegedly by the Respondent into evidence, but stumbled on the basic rules of authentication. Consider, for example this exchange: THE WITNESS [the Petitioner, Kimberlin]: On or about December 20th, I wrote to [the Respondent] 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 Jordan’s court named Seth Allen. Mr. Walker responded – MR. BOURS: Object. THE COURT: Sustained. That’s hearsay. THE WITNESS: I went online and saw Mr. Walker’s response where he posted on his blog, Allergic to Bull, that ―Brett Kimberlin, convicted terrorist and perjurer‖ – MR. BOURS: Object. Your Honor, I object. THE WITNESS: This is something I read. MR. BOURS: This is not self-authenticating. THE WITNESS: This is something I read and it shows his harassment of me. THE COURT: Okay. Understand something. In this 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 it’s admissible in court. It couldn’t be further from the truth. It still has to be authenticated, like any other document. THE WITNESS: All right. THE COURT: Spider-man could be putting stuff on the Web. You have to be able to authenticate it and you can’t authenticate that. THE WITNESS: Well, I can tell you what I read and I can – THE COURT: I can’t consider what you read. These rules of evidence have been tested over time and they are there to protect you as well as people who are accused of doing things.

THE WITNESS: All right. Well, when Mr. Walker testifies, then I’ll ask him if he wrote these. Transcript, Exhibit A at page 38, line 21 through page 40, lines 3. In this exchange one can see that the Petitioner understood that one way to authenticate the alleged writings of the Respondent was to ask him if he wrote it. So the Petitioner knew of at least one method by which he could authenticate the alleged writings of the Respondent and then failed to do it. He rested his case without attempting to call the Respondent to the stand. So it wasn’t that the court refused to consider evidence of any alleged harassment. It was that the Petitioner never complied with the rules of evidence

necessary to authenticate any evidence of alleged harassment. Having realized he made a foolish error, the Petitioner is now trying to get a second bite at the apple. However, the proper way to obtain that second chance is to demonstrate that the court below committed reversible error, and in this case the rulings below were pedestrian applications of the rules of evidence requiring the authentication of documents. Recognizing that he was unlikely to overturn the rules of evidence themselves, the Petitioner chose to attempt deceive the honorable Court of Appeals into believing the court below made a ruling that it did not. And the Petition for a Writ of Certiorari itself demonstrates to this court there is good reason to believe that the Petitioner would not have been able to make out a case of harassment even if he had managed to enter the Respondent’s actual writings into evidence. For instance, on page 4 of the Petition for a Writ of Certiori, the Petitioner complains that the Respondent has called him on his website ―a terrorist, perjurer, fraudster and otherwise horrible person who ought to be jailed.‖ While the Respondent denies having called the Petitioner a ―fraudster‖ the fact is that each of these statements—made to a general audience—are either true (and can be

shown to be true by the citation of judicial opinions), or they constitute an opinion protected by the First Amendment and excluded from the ambit of the harassment statute as it was read in Galloway v. State, 365 Md. 599 (2001). First, the Petitioner is a convicted terrorist, known as The Speedway Bomber. This is what the United States Court of Appeals for the Sixth Circuit Court said about him: Kimberlin was convicted as the so-called ―Speedway Bomber,‖ who terrorized the city of Speedway, Indiana, by detonating a series of explosives in early September 1978. In the worst incident, Kimberlin placed one of his bombs in a gym bag, and left it in a parking lot outside Speedway High School. Carl DeLong was leaving the high school football game with his wife when he attempted to pick up the bag and it exploded. The blast tore off his lower right leg and two fingers, and embedded bomb fragments in his wife's leg. He was hospitalized for six weeks, during which he was forced to undergo nine operations to complete the amputation of his leg, reattach two fingers, repair damage to his inner ear, and remove bomb fragments from his stomach, chest, and arm. In February 1983, he committed suicide. Kimberlin v. White, 7 F. 3d 527, 528-29 (1993). Second, the Petitioner is a perjurer. Kimberlin v. White, 798 F. Supp. 472, 482 (W.D. Tenn. 1992). As for the claim that he is a ―fraudster,‖ although the Respondent didn’t make that charge, it could be made based on facts known in court opinions. After Carl DeLong committed suicide, his widow, Sandra DeLong, obtained a judgment against Kimberlin. Kimberlin v. DeLong, 637 N.E.2d 121 (1994). When she tried to collect on this judgment, the Petitioner proceeded to cheat her out of the majority of the payment due, engaging in ―deceitful‖ conduct that was so egregious that his parole was revoked as a result. Kimberlin v. DeWalt, 12 F.Supp.2d 487, 494 (1998). Given those facts, it is perfectly reasonable for a person to call the Petitioner a ―fraudster,‖ although the Respondent hadn’t done so.

And any statement that the Petitioner is a ―horrible person who ought to be jailed‖ is protected opinion. The Petitioner is under the mistaken belief that protected expression to a general audience could be prohibited—indeed could be subjected to prior restraint—under Maryland’s criminal harassment statute (MD CODE CRIMINAL. LAW §3-803) and the peace order statute (MD CODE COURTS AND JUDICIAL PROCEDURE §3-1503(a)(6)). This is not consistent with either this court’s opinion in Galloway, or the Supreme Court’s holding in Near v. Minnesota, 283 U.S. 697 (1931) (holding that even defamatory accusations that a person has engaged in ―reprehensible conduct‖ cannot justify a prior restraint on freedom of expression). III. The Circuit Court Did Not Err by Placing the Burden of Proof on the Petitioner. Finally, in the third question, the Petitioner frivolously asserts that the court erred by holding against the Petitioner ―without... requiring the Respondent to put on evidence when (1) it was the Respondent who appealed to the Circuit Court and (2) Respondent was present and the witness with personal knowledge of his long term harassment of petitioner.‖ Putting aside the fact that the Respondent had never harassed the Petitioner at all, what the Petitioner is really objecting to is the fact that when the Circuit Court heard the appeal, it was heard de novo, even though this is the Respondent’s statutory right. MD CODE COURTS AND JUDICIAL PROCEDURE §3-1506(b)(2) (―[a]n appeal taken under this subsection to the circuit court shall be heard de novo in the circuit court‖). This is a frivolous ground for appeal. CONCLUSION In summary, the Petitioner failed to even present evidence to meet many of the elements of the peace order statute, in the circuit court below. The Petitioner wished to introduce evidence of the Respondent’s alleged statements about the Petitioner, on the internet, to a general

audience, as evidence supposedly of harassment, but failed in the most basic way to authenticate any such evidence. In a desperate bid to get a second chance, the Petitioner has actually filed a deceptive Petition for a Writ of Certiorari and remarkably objected to the fact that the circuit court heard the case de novo. When stripped of all of the Petitioner’s deceptions, the decision below represents a quite pedestrian application of the rules requiring authentication and the statutory right to a de novo appeal. The Petitioner has failed to make any showing that review is necessary to ensure uniformity of decision or that any other special circumstances apply as required under MD CODE COURTS AND JUDICIAL PROCEDURE. §12-305. Accordingly this Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

Aaron J. Walker, Esq. Pro Se, Va Bar #: 48882 D.C. Bar #: 481663 P.O. Box 3076 Manassas, Virginia 20108 AaronJW72@gmail.com (703) 216-0455.

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