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DEPOSITION SERVICES, INC.

12321 Middlebrook Road, Suite 210


Germantown, Maryland 20874
(301) 881-3344
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND





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:
BRETT KIMBERLIN, :
:
Plaintiff, :
:
v. : Civil No. 380966
:
AARON WALKER, ET AL, :
:
Defendants. :
:
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JURY TRIAL






Rockville, Maryland August 11, 2014


DEPOSITION SERVICES, INC.
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND





------------------------------X
:
BRETT KIMBERLIN, :
:
Plaintiff, :
:
v. : Civil No. 380966
:
AARON WALKER, ET AL, :
:
Defendants. :
:
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Rockville, Maryland

August 11, 2014


WHEREUPON, the proceedings in the above-entitled
matter commenced
BEFORE: THE HONORABLE ERIC JOHNSON, JUDGE
APPEARANCES:
FOR THE PLAINTIFF:
BRETT KIMBERLIN
Pro Se
8100 Beech Tree Road
Bethesda, Maryland 20817

FOR THE DEFENDANTS:

PATRICK OSTRONIC, Esq.
932 Hungerford Drive
Suite 28A
Rockville, Maryland 20850


I N D E X


Page

Jury Selection 114




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P R O C E E D I N G S
THE COURT: Parties identify yourselves for the
record, please.
MR. KIMBERLIN: Brett Kimberlin, plaintiff, pro se.
THE COURT: All right, youre at the wrong table.
MR. KIMBERLIN: Okay.
THE COURT: Lets get started the right way.
MR. OSTRONIC: Lets get started.
THE COURT: Counsel?
MR. OSTRONIC: Good morning, Your Honor. My name is
Patrick Ostronic. I am here on behalf of the defendants, Mr.
McCain, Mr. Walker, Mr. Hoge and Mr. Akbar, all of whom are in
the courtroom this morning.
THE COURT: You represent all the defendants?
MR. OSTRONIC: Yes, Your Honor.
THE COURT: And there is no potentiality for
conflict in this?
MR. OSTRONIC: We havent identified it right now,
Your Honor, no. Because right now, Your Honor, we have four
different cases here, four different defamation suits.
Everyone stands on their own. It does not overlap at all.
THE COURT: Have they been consolidated?
MR. OSTRONIC: No, Your Honor, what happened was, it
was a --
THE COURT: So youre telling me that this, that this
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shows on the docket Brett Kimberlin v. Aaron Walker, malicious
prosecution. Its a jury trial set for three days. And now
youre telling me there are four cases?
MR. OSTRONIC: Your Honor, there were originally five
defendants listed. After several amendments, it went to six.
He added two defendants which have not yet been served.
However, at a July 1 motions hearing in front of Judge McCann,
five of the seven original counts were dismissed on summary
judgment.
THE COURT: So whats left?
MR. OSTRONIC: Defamation and false light.
THE COURT: Against?
MR. OSTRONIC: Against Mr. Walker, Mr. Hoge, Mr.
Akbar and Mr. McCain.
THE COURT: Now, so youre telling me that theres no
potential of any conflict as between the defendants?
MR. OSTRONIC: I dont see it right now.
THE COURT: In other words, there wont be any of
this --
MR. OSTRONIC: No, Your Honor.
THE COURT: -- for the record, pointing at each
other?
MR. OSTRONIC: No, I dont see it.
THE COURT: Anything else preliminarily?
MR. OSTRONIC: I believe we have some preliminary
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matters to attend to. I know Mr. Kimberlin has already entered
one and we have some motions in limine I believe to go through.
MR. KIMBERLIN: I have two motions that I filed last
week, a motion in limine and a motion to find a statute, a rule
unconstitutional.
THE COURT: Which rule?
MR. KIMBERLIN: It has to do with the rule, and I
dont have exactly --
MR. OSTRONIC: Its 9-1, Your Honor, its 9-104.
Perjurers cannot come testify.
THE COURT: 9-104?
MR. OSTRONIC: Im sorry, perjurers cannot testify --
THE COURT: There are a lot of 9-104s. Where?
MR. OSTRONIC: Im sorry, CJ, Courts and Judicial
Proceedings.
THE COURT: Oh, Courts and Judicial proceedings.
MR. OSTRONIC: Im sorry, Your Honor.
THE COURT: Thats the section that provides that a
person who has been convicted of perjury may not testify.
MR. OSTRONIC: Yes, Your Honor.
THE COURT: Okay.
MR. KIMBERLIN: And so I filed a motion to find that
unconstitutional. We had a hearing last Thursday before Judge
Jordan. He opined that it was an unconstitutional statute,
especially in the case where theres a victim.
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THE COURT: Well, hold on a second. You may not
know this, and this comment isnt intended to be glib, but our
Court of Appeals Judges, the highest court in Maryland is not
called the Supreme Court of Maryland, although it probably
should be, our highest court is called the Maryland Court of
Appeals. They wear red robes. My robe is black. Youre
asking me to overruled Maryland law. That would be rather
presumptive, I think, of a trial Judge to essentially find that
a statute that has been duly enacted in the State of Maryland
is unconstitutional. Im going to have to have some compelling
reason to make that --
MR. KIMBERLIN: I put those in the motion. Im sorry
that they didnt get it to you this morning.
THE COURT: Well, this case came up late Friday
evening. And so thats of no moment. We can still deal with
the issues that are involved.
MR. KIMBERLIN: Well, first of all, theyre saying
that I cant testify in this case because --
THE COURT: No, theyre not saying it. The statute
says -- you were convicted of perjury, correct?
MR. KIMBERLIN: I think thats their burden of proof.
I think if they have a certified copy then they should present
it. I dont want to make that admission.
MR. OSTRONIC: Your Honor, he already made the
admission. He filed the motion to have it overturned. And in
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the motion he filed, he said that he had been convicted of
perjury.
MR. KIMBERLIN: But its their burden. If they want
to say that Ive been convicted of perjury --
THE COURT: Well, but the problem for the Court
though, if a person appears before this Court, having been
convicted of perjury, then under the statute, this Court cannot
allow that person to testify.
MR. KIMBERLIN: Precisely. And thats why its
unconstitutional, because it conflicts with other rules, many
other rules regarding the ability to put on witnesses, the
ability to testify, the ability of a --
THE COURT: Well, you can put on witnesses. The
statute doesnt prohibit calling witnesses.
MR. KIMBERLIN: Well, it prohibits me calling myself.
And Im a pro se litigant. You know?
THE COURT: It doesnt prohibit you calling other
witnesses.
MR. KIMBERLIN: I understand that. But what Im
saying is that they have the burden of proof to show that I
have a perjury conviction, first of all. They need to come to
you and say that I have a conviction. Second of all, theres
another rule that says that convictions more than 15 years old
are inadmissible.
THE COURT: Sir, whether you have been convicted of
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perjury or not is just a point and click away.
MR. KIMBERLIN: Well, I understand that. But still,
it has to be proved. It has to be proven.
THE COURT: A certified record is just a point and
click away. And thats being done right now.
MR. KIMBERLIN: Okay. Well --
THE COURT: So youre asking this Court to ignore the
allegation that a person is convicted of perjury and to allow
the testimony when the statute specifically prohibits it? Its
not about them, its what youre asking this Court to do.
MR. KIMBERLIN: No, Im asking the Court to say that
that statute conflicts with other statutes. And so what
statute do you apply? Do you apply the statute that allows me
to call witnesses or the rule that says that convictions more
than 15 years old cannot be used to impeach? You know --
THE COURT: Well, that rule provides also that if the
Court determines that the probative value of admitting this
evidence outweighs the danger of unfair prejudice to the
witnesses or to the objecting party, so thats an issue that
the Court would have to reach.
MR. KIMBERLIN: Okay, so lets get to that probative
value. The perjury conviction occurred when I was a teenager,
40 years ago. 40 years ago. I went before a Grand Jury
without an attorney. I was not read my rights at that Grand
Jury. I went to court and was found guilty of perjury. The
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Judge intended to sentence me under the Youth Corrections Act.
The Youth Corrections Act is a Federal statute that states that
when a person turns 21, the conviction is expunged.
Unfortunately, the Judge forgot to make a, quote, no benefit
finding as required by the Supreme Court in a later case called
Dorzynski. Dorzynski said if a Judge fails to make a no
benefit finding at sentencing, that the sentence is wrong. And
that case came up in the Supreme Court. Dorzynski came up
right after my case was decided, back in 1974.
So I went back into court and asked the Judge to
apply Dorzynski to my case so that the conviction would be
expunged when I reached 21. The Judge said that Dorzynski,
because it was a procedural decision by the Supreme Court could
not be applied retroactively in the 7th Circuit.
In the 9th Circuit and other circuits, the Courts
have held that it is applied retroactively. So simply by
virtue of the fact that I was sentenced in the 7th Circuit
rather than the 9th Circuit and that the Judge made a mistake,
an honest mistake at sentencing by failing to make the no
benefit finding, 40 years later Mr. Ostronic is coming here and
asking you to say that I cant testify.
And thats why theres no probative value at all in a
perjury conviction that happened as a teenager, when I was not
represented by counsel in front of a Federal Grand Jury.
Theres no probative value in holding that perjury conviction
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over my head because of a mistake by a Federal Judge. That
mistake has dogged me for my whole life.
THE COURT: During the course of this trial, I know
youre representing yourself, and its fine to cite cases off
the top of your head, but you need to give the Court the cite
for it.
MR. KIMBERLIN: Okay. I mean, it was in my motion.
THE COURT: I understand that. But youre standing
before the Court arguing now. Dont send me on a hunting trip
to find things that youre citing. Just give me the cite.
MR. KIMBERLIN: Let me see.
THE COURT: Youre going to get time to do that.
MR. KIMBERLIN: Okay.
THE COURT: But you can take your papers out and get
ready for trial. We dont want every time an issue comes up,
if its before a jury, to have people have to go to their
briefcase.
MR. KIMBERLIN: And you know, my belief is that that
certified, quote, certified record of that conviction, I have
my doubts that its online.
THE COURT: Counsel?
MR. OSTRONIC: Your Honor, I will simply point out
that plaintiff did file a motion on Friday to ask that this
statute be ruled unconstitutional. In the motion that he
filed, he admitted to having been convicted of perjury. So
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that should be enough right there I would think, Your Honor.
Plus, we have numerous cites to some Federal case law.
THE COURT: Well, the issue is not whether he was
convicted of perjury. The issue is whether or not his argument
that the Courts and Judicial Proceedings Article --
MR. OSTRONIC: Is unconstitutional?
THE COURT: -- is unconstitutional. Thats the
issue.
MR. OSTRONIC: Your Honor, I would argue first of
all that I do have a, I put together a response myself over the
weekend, finishing this morning, which if I can hand it up to
Your Honor. Ill hand one to -- it makes several citations,
Your Honor, to Maryland case law which outlines that the right
to testify is not constitutional but a statutory one. That was
in State v. McKenzie. And all the cases that we state, Your
Honor, we clearly show that this is in matters involving a
criminal defendant. And if the matter of a criminal defendant,
the court will find for a criminal defendant in this case that
the right to testify is not absolute, that there are parameters
you can put on it. Then surely a civil case, which is all
dictated by statute and court rules as to who can testify, what
can be brought before a civil case. Its surely
constitutional. And Ill even point out a little further, Your
Honor, that when the constitution, when the Maryland
Declaration of Rights and when the Maryland Constitution were
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all originally passed, at that time, the right to testify for
implicit parties was not in existence. And here in Maryland,
the right to testify did not become fully entered until 1876.
So it didnt all of a sudden become constitutional
just because, Your Honor, especially when you come here in a
civil case. The State of Maryland in its efforts to have
reliable cases have witnesses come forward that are both
relevant and reliable and can surely set limits on who can
testify.
MR. KIMBERLIN: Your Honor, again, there seems to be
a slight conflict in the rules. And as he just said, the right
to testify is statutory. So, does a rule override a statute?
I think that statutory construction always applies --
MR. OSTRONIC: No, no, no --
THE COURT: You both cant talk at the same time.
MR. OSTRONIC: Im sorry.
MR. KIMBERLIN: -- rather than the rule.
THE COURT: Go ahead.
MR. KIMBERLIN: But, in this case, you know, to say
that a 40 year old teenage perjury conviction forever prohibits
me from defending myself, I mean, if I just get beat up or a
car ran a red light and hit my car, you know, am I prohibited
from testifying that car hit me or that that guy just hit me
with a baseball bat because Ive been convicted of perjury?
Ive testified in front of you before, Judge. You let me
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testify. Ive testified in front of Judge Burrell. She let me
testify. Ive testified in front of Judge Algeo. He let me
testify.
THE COURT: Was the statute invoked?
MR. KIMBERLIN: Yes.
THE COURT: The issue was raised?
MR. KIMBERLIN: Judge Alego, when we were in front of
him last year --
THE COURT: And what court is that?
MR. KIMBERLIN: Right here.
THE COURT: Alego?
MR. KIMBERLIN: Algeo, maybe.
THE COURT: Oh, Algeo, okay.
MR. KIMBERLIN: Im sorry, dyslexic today. Judge
Algeo.
THE COURT: Well, was there a motion made to prohibit
you from testifying because youve been convicted of perjury?
MR. KIMBERLIN: Yes. They have stated to every
single Judge in this case over and over and over that I cant
testify. When they raised this last Thursday before Judge
Jordan, they came in with a motion for summary judgment on
these two counts before Judge Jordan. And Judge Jordan said
that he believed that the statute was unconstitutional and if
he was the trial judge, he would hold it unconstitutional.
But, you know, in my motion --
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THE COURT: He deferred to the trial judge in that
case?
MR. KIMBERLIN: Of course, he deferred to you. Of
course. He said youve got to make that decision. But the
point that Ive made in my motion is that its not just, I say
find it unconstitutional or in the alternative not applicable
in this case. Thats the motion I filed.
So Im asking you in your wise judgment to find that
a 40 year old teenage perjury conviction that has some
constitutional or statutory infirmities and it was only because
of the fact that I wasnt represented by counsel at a Grand
Jury and that I, that my Federal Judge, Judge Steckler said
that, I mean, forgot to say on the record Im doing this under
the Youth Corrections Act. Because we all assumed --
THE COURT: And did you find the cite for that case?
MR. KIMBERLIN: Its Dorzynski v. U.S., D-O-R-Z-Y-N-
S-K-I.
THE COURT: Dorzynski?
MR. OSTRONIC: Hes talking about the Supreme Court.
I think the Judge is asking you about your case.
MR. KIMBERLIN: Yes. But the Supreme Court case
specifically says that the Judge has to make a no benefit
finding if youre under 21 that youre not going to benefit
from the Youth Corrections Act. He has to make that finding.
And the Judge did not make that finding on the record, he
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forgot to. But everybody assumed it. My probation officer at
the time told me youre going to have this conviction expunged
when youre 21. Everybody knew it. And then what happens?
Its not expunged. I go back into court and I say, wait a
second, Judge, you forgot to do this. Well, yeah, I forgot to
do it. Im so sorry, Mr. Kimberlin, but I cant apply that
retroactively because its a procedural decision from the
Supreme Court. And I said, well, I filed a writ of coram
nobis, Judge, to get that thing thrown out. You know? And it
was only because it was considered a collateral attack --
THE COURT: Are you a lawyer?
MR. KIMBERLIN: I feel like it, but no, I didnt get
my law degree. But I did study a lot.
THE COURT: Well, theres another issue, and this
issue really has been pretty well argued and briefed. So you
said there were two motions in limine?
MR. KIMBERLIN: Yes, the other issue is theres a
rule that I dont think that anybody is arguing about, and that
is that a conviction over 15 years old is not allowed to be
used for impeachment purposes. And that rule is Rule 5-609(B)
and in that case, Beales v. State, 329 Md. 263, 1993, the Court
of Appeals ruled that it was error for the Judge to admit a
conviction of more than 15 years old.
THE COURT: Again, whats the cite of that case?
MR. KIMBERLIN: Its 329 Md. 263, a 1993 case.
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THE COURT: 229 or 329?
MR. KIMBERLIN: 329. Beales, B-E-A-L-E-S v. State.
Error for the Judge to admit a conviction of more than 15 years
old. And I think in that case, Im not exactly familiar with
the facts, but I think it was a criminal case and there was a
witness and the Judge allowed the conviction to come in to
impeach the witness. And the defendant appealed I believe and
the Court of Appeals reversed. You know, and obviously nobody
wants reversible error in this case. And I think that allowing
a 40 year old perjury conviction or any other convictions that
they might allege, you know, would be improper.
THE COURT: The counts that are left -- and Im
referring to defense counsel now --
MR. OSTRONIC: Yes, Your Honor.
THE COURT: Right. Now, the counts that are left,
and Im referring to defense counsel now. What are the ones
that are left, the numbers?
MR. OSTRONIC: Numbers 3 and 4, Your Honor.
THE COURT: And thats of the original complaint?
Not an amended --
MR. KIMBERLIN: The second amended complaint.
THE COURT: The second amended complaint.
MR. OSTRONIC: The counts remain the same through all
the complaints.
THE COURT: Okay. And they are?
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MR. KIMBERLIN: Its defamation and false light.
THE COURT: Okay, now how are you, how do you intend,
as plaintiff to prove up the defamation count without talking
about the allegations that the defendants make against you?
How do you intend to do that?
MR. KIMBERLIN: I am going to talk about the
allegations.
THE COURT: But my question is how do you intend to
do that?
MR. KIMBERLIN: How do I intend to?
THE COURT: Yes. In other words, you want to keep,
you want to keep your past history, thats what this is all
about, correct?
MR. KIMBERLIN: No, its not about my past history at
all. It has nothing to do with my past history. It has to do
with defamatory statements that these defendants have made
about me, crimes that --
THE COURT: All right, what defamatory statements?
MR. KIMBERLIN: Crimes that I have never been charged
with, convicted of, or anything. These men on a daily basis,
every single day for the last several years --
THE COURT: Well, I mean, youre arguing your case,
and youll get a chance to do that. But --
MR. KIMBERLIN: They called me a murderer. Ive
never been involved with murder. Ive never done a murder.
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Theyve called me a terrorist. Im not a terrorist.
THE COURT: Okay, let me stop you there. How are you
going to, they must plan, theres something that has been said
about you, some conduct, all right, that you were allegedly
involved in, thats what theyre talking about, correct?
MR. KIMBERLIN: No, they seem to have made out of
whole cloth, they say that Im a pedophile. Every day they say
Im a pedophile. Every day. And they post pictures of
Me.
THE COURT: But thats not all they say though.
MR. KIMBERLIN: Oh, no.
THE COURT: How do they, what is it that, about your
past conduct, your alleged past conduct that would give rise to
the comment about being a terrorist? What conduct would they
stand on to show that?
MR. KIMBERLIN: Well, I dont know. I dont know.
But a terrorist --
THE COURT: Well, you must know what theyre accusing
you of or you cant defend it.
MR. KIMBERLIN: Oh, no, I can defend it.
THE COURT: Okay, what is it that they allege you did
that would be terrorist activity?
MR. KIMBERLIN: I cant speak for them, but I can
assume that what theyre saying is because I was convicted of a
crime 35 years ago.
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THE COURT: What crime?
MR. KIMBERLIN: For detonating an explosive device,
that Im a terrorist.
THE COURT: Okay.
MR. KIMBERLIN: But that is not terrorism. That is
not terrorist. Okay?
THE COURT: Thats an argument.
MR. KIMBERLIN: Thats an argument for the jury.
THE COURT: Now, what Im trying to get you to focus
in on, how are you going to allege that what theyre saying,
i.e., that youre a terrorist, is not accurate unless you talk
about what it is that theyre saying? You cant say to the
jury, theyre saying something about me and the something that
theyre saying is not true.
MR. KIMBERLIN: Okay.
THE COURT: So in other words, the jury would have to
know what it is thats said thats not accurate. So as soon as
those words are uttered, thats when the problem begins. You
dont agree with that?
MR. KIMBERLIN: Well, calling me a terrorist was one
of many defamatory statements, not the worst.
THE COURT: Okay.
MR. KIMBERLIN: Calling me a murderer is pretty bad.
Calling me a pedophile every day, Ive never been arrested for
pedophilia. I have never been --
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THE COURT: Are they saying you were arrested for
pedophilia?
MR. KIMBERLIN: They say Im a pedophile.
THE COURT: But one of the things that will make
trials go a lot easier, and this is something you try to get
witnesses to understand, when asked a question, either answer
the question that was asked or say you dont understand it or
something. My question was were you ever arrested for sexual
child abuse?
MR. KIMBERLIN: Never.
THE COURT: You were never arrested for that?
MR. KIMBERLIN: Never.
THE COURT: Do they say you were arrested for that?
MR. KIMBERLIN: They say that I was charged with
that. They say that I am that.
THE COURT: Is that a yes, that they say you were
arrested for pedophilia? If you have charges, theres an
arrest. So is that what they said?
MR. KIMBERLIN: They say that Im a pedophile.
THE COURT: But my question is, do they say that you
were arrested or charged with pedophilia? Its not a hard
question.
MR. KIMBERLIN: Well, you know, it kind of is just
because they have created this mean thats so bizarre involving
my wife.
pm 22

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THE COURT: Were you arrested for a sexual --
MR. KIMBERLIN: Never. I was never arrested.
THE COURT: So if they say that you are something
that youre not, thats one thing.
MR. KIMBERLIN: Right.
THE COURT: If they say you were arrested for
something, thats clearly something that can be disproved. I
mean, whether you were arrested or not. So this isnt
splitting hairs, here.
MR. KIMBERLIN: No, I know.
THE COURT: What are they alleging? Are they
alleging that youre a pedophile or are they alleging that you
were arrested for pedophilia?
MR. KIMBERLIN: Theyre alleging that I am a
pedophile. Theyre alleging that Im a murderer, that Im a
killer. Theyre alleging that I got them fired from their
jobs, that I forced them to flee their homes. These are all
false. Theyve done it in a campaign, a multi-year campaign.
THE COURT: Okay. All right.
MR. KIMBERLIN: And so as far as proving this, I
prove it with their own statements. I have literally
thousands, thousands of tweets and --
THE COURT: Well, were not going to hear thousands
of tweets. This jury will be asleep at the end.
MR. KIMBERLIN: Well, I know. I certainly dont
pm 23

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intend to bore the jury with that. But I can show tweets, a
tweet is something from Twitter. I can show tweets. I can
show blog posts. I can show statements on the radio where they
call me a pedophile.
THE COURT: Youre saying they. You have to limit
any evidence that comes in specifically to --
MR. KIMBERLIN: These four guys.
THE COURT: Are you able to show before this jury
conduct that was engaged in by each specific person that you
have sued?
MR. KIMBERLIN: Yes.
THE COURT: And youre able to prove that whatever it
is they did it, that the individuals that youre claiming are
responsible actually did it?
MR. KIMBERLIN: Yes. Ive got that, I mean, theyve
signed --
THE COURT: And what about damages?
MR. KIMBERLIN: Damages? Damages are easy.
THE COURT: Tell that to a jury.
MR. KIMBERLIN: Yes, well, Im going to. Per se
defamation is, according to the Maryland Court of Appeals, is
presumed harm.
THE COURT: Well, let me see if I understand your
sort of theory here.
MR. KIMBERLIN: Okay.
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THE COURT: You want to prevent the defendants from
establishing whatever basis they believe they have for making
these statements about you? In other words, if they say that
you were a terrorist, whatever they mean by that, you want to
prevent them from talking about your conviction for detonating
explosives?
MR. KIMBERLIN: Judge.
THE COURT: Its not a hard question. You want to
prevent them from doing that?
MR. KIMBERLIN: No.
THE COURT: You dont?
MR. KIMBERLIN: I dont want that. My conviction for
detonating an explosive is not terrorism. Its not a
terrorist.
THE COURT: Hold on a second. Thats argument.
Thats for whoever the alleged fact finder is to determine. My
question is, you want to prevent them from getting into that.
In other words, youre going to say they say Im a terrorist
and Im not a terrorist. You want to stop them from saying we
said hes a terrorist because he did this, this and this. Is
that what you want to do?
MR. KIMBERLIN: Im saying --
THE COURT: I ask easy questions.
MR. KIMBERLIN: I know.
THE COURT: Is that what you want to do?
pm 25

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MR. KIMBERLIN: No, Im saying --
THE COURT: You want to say they say Im a terrorist
and --
MR. KIMBERLIN: If I testify, the rule says they
cannot impeach me with a conviction of more than 15 years old.
Thats what the rule says. And you havent ruled yet whether I
can testify.
THE COURT: Well, hold on a second. Lets go back to
my question. My question is you sue them and you say one of
the things that they claim is that youre a terrorist. You
want to stop them from putting on the evidence to support why
they call you that name, is that right?
MR. KIMBERLIN: No, thats not right.
THE COURT: So in other words, youre not going to be
objecting to them saying this man was detonating explosive
devices and we think thats terrorism?
MR. KIMBERLIN: Im not going to object to that.
THE COURT: I mean, terrorism is not a specific,
well, it might be a Federal charge, but theres no charge.
Terrorism is I suppose an adjective describing certain kinds of
conduct.
MR. KIMBERLIN: Right.
THE COURT: So would it not be a factual question of
whether an individual who was detonating explosive devices,
whether thats terrorism or not, is something to be argued?
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MR. KIMBERLIN: Thats something that should be
argued, and I think the jury should have that.
THE COURT: Okay.
MR. KIMBERLIN: And Im agreeable to that. But, you
know, theyre arguing for a rule over here about perjury.
Theres another rule that says you cant do this if its more
than 15 years old. And I may not even testify. I may not. As
the trial proceeds --
THE COURT: Who do you intend to call as witnesses?
MR. KIMBERLIN: Well, I intend to call my daughter.
THE COURT: To testify to what? You dont have to
give the details of her testimony, obviously. I dont want you
to reveal necessarily your litigation strategy.
MR. KIMBERLIN: They know it.
THE COURT: But is she going to give factual
testimony --
MR. KIMBERLIN: Oh, yes.
THE COURT: -- related too, youre going to show this
jury that these certain things were said about you?
MR. KIMBERLIN: Right.
THE COURT: And then you know what the defenses to
defamation are, do you not?
MR. KIMBERLIN: Yes, I do.
THE COURT: What are they?
MR. KIMBERLIN: Well, Id love to hear what you have
pm 27

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to say.
THE COURT: Truth is the defense.
MR. KIMBERLIN: Truth, yes, right.
THE COURT: So in other words, if youre called a
terrorist and you say youre not, and they put on evidence,
well, he says hes not a terrorist, but he was going around
blowing up chicken coops or whatever, I dont know. And then
wouldnt that be a factual question for the fact finder?
MR. KIMBERLIN: It would. It would be. Right. And
my daughter is certainly not going to testify, my 15 year old
daughter is certainly not going to testify about something that
happened 40 years ago.
THE COURT: She wasnt even born then. She wasnt
even born. So what is she a witness to?
MR. KIMBERLIN: But shes going to testify about
pedophilia.
THE COURT: How is she going to testify about that?
Is the allegation that she was the victim of it?
MR. KIMBERLIN: Thats what theyve said. Yes.
THE COURT: And you want a 15 year old girl to be
embroiled in this?
MR. KIMBERLIN: Judge, my daughter is 15 years old.
She has been bullied out of two schools, two high schools,
bullied by these guys.
MR. OSTRONIC: Your Honor --
pm 28

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MR. KIMBERLIN: She has had to move twice schools --
THE COURT: Hold on a second, again, youre not
arguing the case, were just talking about these motions.
MR. KIMBERLIN: -- because of these false allegations
of pedophilia. They have tried to destroy her musical career.
Shes a child prodigy. Im just letting you know. Shes
very, very capable.
THE COURT: Lets just limit this to whats necessary
for purposes of these motions. So thats as to your second
motion in limine, that the conviction, over 15 years ago. Now,
but those things are the very basis of how all this started, is
it not?
MR. KIMBERLIN: No, its not.
THE COURT: Okay.
MR. KIMBERLIN: You know.
THE COURT: Okay. Well, let me hear from the
defense. You dont need to say any more about the perjury
issue. Ill rule on that.
MR. KIMBERLIN: Great.
THE COURT: Yes, sir?
MR. OSTRONIC: Your Honor you have --
THE COURT: The second question, deal with that.
MR. OSTRONIC: The 609 question? The impeachment?
Your Honor, the rule is you cant use convictions over 15 years
to impeach a witness. Thats all it says. Thats what
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impeachment is all about. Its not about bringing facts to
light about the plaintiff or facts to light about the
defendant. Its strictly on impeachment purposes. And if Mr.
Kimberlin does not testify, then none of these facts would be
an impeachment of the witness. And wed certainly have no
problem, I mean, 609 is the rule. Anybody he might call up
here, if there was a conviction over 15 years, youre right,
Im not going to use that to impeach that witness. Thats all
609 calls for.
THE COURT: What the Court is struggling with here
is this. Its a hypothetical. Sit down, sit down. You claim
that say these individuals allege that you are a pedophile.
Okay? And you call a defendant, you can call a party as you
know. And what do you ask him? What basis do you have for
alleging that Im a pedophile?
MR. KIMBERLIN: Yes.
THE COURT: Youve now, that jury has heard that
allegation. And they have to give some answer to that
question, correct?
MR. KIMBERLIN: Right.
THE COURT: But its almost as though what youre
trying to keep from the jury needs to be heard for purposes of
deciding the case. Because you cant come in and just say
theyre saying bad things about me that are not true. Well,
what things? I mean, if the jury doesnt know what it is
pm 30

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thats alleged, then how can they decide this case?
MR. KIMBERLIN: Your Honor, I want the jury to have a
complete picture of this whole case. Im not trying to hide
anything from the jury.
THE COURT: And the only way they dont know about
you, the past with respect to explosives is if for some reason
that evidence is precluded, which is not likely given the fact
that thats what youre claiming. So you cant say theyre
claiming this, theyre defaming me and then prevent them from
saying, well, he did do that.
MR. KIMBERLIN: Well, okay.
THE COURT: Do you understand?
MR. KIMBERLIN: But I didnt murder anybody and I
didnt commit any pedophilia.
THE COURT: Well, Im not talking about murder. Im
just talking about the explosives.
MR. KIMBERLIN: Well, as I present my case, maybe I
wont even talk about the terrorism. Maybe Ill leave that
alone --
THE COURT: Well, thats up to you.
MR. KIMBERLIN: -- based on your esteemed judgment.
But --
MR. OSTRONIC: Your Honor, if I can just throw in one
thing here?
THE COURT: Sure.
pm 31

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MR. OSTRONIC: On the question of pedophilia, if that
matter is introduced, Your Honor, you and him were dancing
around the question of being arrested or --
THE COURT: Well, hes dancing around it.
MR. OSTRONIC: Thats what Im saying, he was
dancing. I knew you were trying to get the answer. And you
actually hit right on the head, Your Honor, was he ever
charged. And is that what the basis is of some of the claims.
And there was in fact charges issued by the State of Maryland
against Mr. Kimberlin for third degree sexual assault last
July. Thats there, the records were sealed back in October
and November, et cetera, but those charges were out in the open
there for a while. Any claims about pedophilia began after
that moment, after those things came out, Your Honor. And
those charges were filed by his wife against him. And the
State of Maryland accepted and put the charge at the front
there. So to the extent --
THE COURT: How do you intend to get that into
evidence though?
MR. OSTRONIC: Well, I dont want to bring it into
evidence, Your Honor. But if he brings up and says, if he asks
any of my clients about charging him with pedophilia, its out
there, Your Honor.
THE COURT: There it is.
MR. OSTRONIC: There it is. And hes brought it in
pm 32

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there. And what I dont want to happen here, Your Honor, is to
relive this. If hes going to bring his daughter in here, and
Ill have some motions later on about what witnesses he can and
cannot, he should or should not call, I would certainly not
want her to hear all that again.
THE COURT: Yes, I wouldnt want a 15 year old to
have to be subjected to that.
MR. KIMBERLIN: Your Honor, thats what this case
boils down to. My wife has some mental issues. Ive been
dealing with that all my life.
THE COURT: Well, not all your life, just since
youve been married.
MR. KIMBERLIN: Well, 15 years. And last year these
guys harassed us so much, came to our house, sent proxies to
our house, took pictures of daughters, filed multiple, multiple
criminal charges against me, peace orders against me. One that
was in front of you. And it drove my wife crazy. She had a
nervous breakdown. So what did I do? I did what any loving
husband would do. I sought to get her help, to get her an
evaluation. She had been institutionalized before. This is
what I did. Thats what loving husbands do.
These guys came to the court, came to the hearing,
they saw it on the case site, because they had been stalking
me. They watched everything I do --
MR. OSTRONIC: Your Honor, now hes testifying.
pm 33

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MR. KIMBERLIN: Okay. No, Im trying to lay the
groundwork here. So these guys come to the court. Judge, I
think her name is Mitchell, pulled my wife, put her in
handcuffs, pulled her in the back and said, you know, what
youre doing is inappropriate --
MR. OSTRONIC: Now hes talking out of court.
THE COURT: You cant do that.
MR. KIMBERLIN: But she said I either lock you up for
an evaluation, or you get help.
MR. OSTRONIC: Again, Your Honor, theres nothing on
the record --
MR. KIMBERLIN: Im just trying to give you --
THE COURT: Thats not really --
MR. KIMBERLIN: So what they do, she comes out of the
courtroom, they contact her shortly thereafter. And what do
they do? They say we know how you can keep from going back for
a mental evaluation.
THE COURT: You wont be able to testify to any of
that. Even if you didnt have this perjury issue, you wouldnt
be able to testify to that.
MR. KIMBERLIN: No, theyll testify to it. Ill get
them to testify to it.
THE COURT: Good luck with that.
MR. KIMBERLIN: But anyway, the point is that they
created this false mean. They created this false narrative.
pm 34

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And my wife, you know --
THE COURT: All right, youre going beyond what I
need to know for purposes of the ruling. Now, the remaining
counts are defamation, correct?
MR. KIMBERLIN: And false light.
MR. OSTRONIC: And false light.
MR. KIMBERLIN: Yes. Counts 3 and 4, I believe.
MR. OSTRONIC: Counts 3 and 4, yes.
THE COURT: Now, what the parties need to -- well,
let me rule on these issues. Now I think probably out of an
abundance of caution we should do jury selection, because its
Monday. Its still Monday, right?
MR. OSTRONIC: Yes, Your Honor.
MR. KIMBERLIN: Weve got a two day trial.
THE COURT: Pardon me?
MR. KIMBERLIN: Theres a two day trial.
THE COURT: And also, were not the only case going
on. And so if we dont get the jurors, then theyll go
elsewhere and it could be longer than that. Are there other
motions?
MR. OSTRONIC: Yes, Your Honor, Id like to introduce
something.
THE COURT: You can have a seat, sir. Okay, this is
a defense motion, correct?
MR. OSTRONIC: Yes, Your Honor. And I just finished
pm 35

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it this morning, Your Honor. I have not been able yet to put
it --
THE COURT: All right, just tell me what it is.
MR. OSTRONIC: All right, Your Honor. If you look
back, Judge McCann made an order on July 8 dismissing five of
the seven counts and imposing sanctions on plaintiff for
failure to provide discovery and putting other limitations on
evidence that he may be able to present to you at the trial.
Judge McCann at that time gave plaintiff until noon July 10th
to answer fully all the interrogatories presented, which
totaled 90 questions and to answer the document requests.
In his order, he stated that any piece of evidence
directly on point with interrogatories that is not covered in
the interrogatory answer by plaintiff or in the document
request will be precluded from being introduced at the trial.
And thats part of his order at 183 and 194, docket numbers 183
and 194, Judge McCanns order.
Towards that, Your Honor --
THE COURT: Well, we can shortcut that. If the Court
ordered that interrogatories be answered and there were
specific questions asked that were not answered, then clearly
any information that was sought and not turned over to the
defense after the Courts order will not be admitted.
MR. OSTRONIC: Okay, Your Honor.
THE COURT: But I cant rule on that until the issue
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comes up. If theres something that comes up that should have
been turned over or should have been answered and it wasnt
answered, then it will not be admitted.
MR. OSTRONIC: You want to wait specifically until
its tried in the case itself or, because I think we can --
THE COURT: Yes. Why, you think its that simple?
MR. OSTRONIC: I do think its that simple.
THE COURT: What is it?
MR. OSTRONIC: Your Honor, he did not answer
interrogatory number one which asked the plaintiff to name all
individuals that may have discoverable information that tends
to support a position that you have taken or intend to take in
this action including any claim for damages and state the
subject matter of the information possessed by that person. He
named nobody, which means that any witness that he might call
would presumably have some information that supports one of his
positions. Since he did not name that person or what
information they had, he should be precluded from calling any
witnesses to this case.
THE COURT: Including parties?
MR. OSTRONIC: Well, no, parties he can call. He can
call the parties, yes, Your Honor. But any other witness
outside the parties he should not be able to call. Further,
Your Honor, standard general interrogatory number four asked
plaintiff to itemize and show how you calculate any economic
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damages claimed by you in this action and describe any non-
economic damages claimed. Plaintiff has claimed in his
complaint, he did ask for --
THE COURT: Whats the number of that?
MR. OSTRONIC: Thats standard general interrogatory
number four. Your Honor, do you want to have a copy of this?
THE COURT: No, go ahead.
MR. OSTRONIC: Okay. His response to that was simply
to say that damages would be based on a normal hourly rate that
an attorney versed in internet defamation would charge, and
that was it. Thats all he said about damages. In other
words, he claimed no economic damages and itemized not a single
dollar of damages.
Further, Your Honor, in Judge McCanns order, Judge
McCann said that unless plaintiff answers the questions about
expert witnesses, hell be precluded from calling any expert
witnesses.
THE COURT: Whats the number of that? Was that a
specific interrogatory?
MR. OSTRONIC: Thats number three. The expert
witnesses would be, number two is the expert witnesses, Your
Honor. Further, we had a separate --
THE COURT: Is there going to be an expert in this
case?
MR. OSTRONIC: No, Your Honor. But what you just
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heard from his answer to the general interrogatory about
damages calling a lawyer to talk about that, that would be --
THE COURT: That would not be a standard by which a
pro se claim could allege damages if he didnt in fact have a
lawyer and paid attorneys fees. Thats a no-brainer.
MR. OSTRONIC: So then he has no damages claimed,
Your Honor. No non-economic damages claims, no witnesses out
there to be claimed, and if he cant testify, Your Honor, wed
be wasting the jurys time. Because further, Your Honor, one
other aspect we talked about, defamation --
THE COURT: Well, he could call the parties though.
MR. OSTRONIC: He could call the parties, Your Honor.
But defamation requires proving falsity. He has to prove the
falsity. We do not introduce truth of defense. Thats a
standard here in Maryland. There is no way the parties can
prove falsity, no way the parties could prove harm. They have
no information to that regard. It would just be a complete
waste of time, Your Honor, for all of us to go through this.
Thats where hes limited to.
THE COURT: What is this motion captioned?
MR. OSTRONIC: The motion I was going to introduce
would be a motion in limine to --
THE COURT: Motion to do what?
MR. OSTRONIC: To conform plaintiffs use of evidence
to an earlier court order. I just finished it this morning,
pm 39

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Your Honor.
THE COURT: Are there any other motions?
MR. KIMBERLIN: Can I respond to that?
THE COURT: You will be able to respond to
everything thats said. I want him to finish the motions.
MR. OSTRONIC: Then I have some specific
interrogatory answers in here, Your Honor, but from what youve
told me earlier, we can, those can be brought up during the
case itself.
THE COURT: What about any other motions?
MR. OSTRONIC: Those are my only motions, Your Honor.
Well, excuse me, Your Honor. The one other thing we would
suggest is you can see plaintiff has a pile of papers there.
None of these has been authenticated. He did not request any
authentication, et cetera. We would request before we brought
the jury in that anything that he wanted to be introduced would
be authenticated or otherwise identified. And we would want to
make sure that any documents he wishes to introduce were
presented to us in discovery. And we would compare it against
our discovery. Further, because of the time parameters on the
torts involved here, namely the defamation is a one year
statute of limitations, we did not introduce documents that
went back to 2012, January of 2012 or what have you, nor do we
want to see entries that were outside of the complaint.
Plaintiff has so far yet to identify a single document that
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contains particular defamation that he says how it harmed him
or what have you, Your Honor.
We would want then therefore to say any document he
introduces has to at least be relevant to the specific claims
he makes in his complaint. He cant introduce new material
that we didnt know he was claiming in his defamation.
THE COURT: Well, clearly any information that was
requested in discovery and not turned over in discovery will
not be used at trial. Thats just a standard rule.
MR. OSTRONIC: Yes, Your Honor.
THE COURT: Thats not unique to this case. All
right, sir, do you want to respond to the two issues of
counsel? One, that you didnt answer interrogatories --
MR. KIMBERLIN: Okay. First of all --
THE COURT: And two, that you didnt explain what
non-economic damages you sustained.
MR. KIMBERLIN: Right. Ive got a couple of issues.
First of all, the defendants and myself filed a pre-trial
statement on June 6. It was signed by all parties, including
Mr. Ostronic and all the defendants and myself. Its required
by I think it was Judge Rubin. And number eight lists name,
telephone, address of each person who may be called to testify.
I provided that. They have notice of that. The whole issue in
a trial is notice and due process. You know, they know who I
may call to testify. You know, when the defendants all signed
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it right here, and it goes before a Judge as a joint filing,
they have notice. Obviously, the interrogatories were
something that happened subsequent to that. And as a pro se
litigant, I didnt think that I had to list again witnesses
that Ive already listed and that they signed off on. It
doesnt make any sense to do that.
Secondly, on July 10th as ordered by Judge McCann, I
turned over probably 3,000 pages of documents. Three thousand
pages. Now, you know how many pages theyve turned over to me?
One. One single e-mail. When I filed a motion to compel their
compliance with discovery, they objected and it was denied.
Ive gotten nothing, zero, except for one small, tiny e-mail.
So what theyre trying to do -- and this case has
been like this from the get-go. You know? Weve had hearing
after hearing before a dozen judges or half a dozen judges,
anyway. And its all been technicalities. Lets knock him out
on this technicality, knock him out on this technicality.
And here it is again. I want a jury trial on the
merits. I deserve that. Im a pro se litigant. You know?
Hes trying to say that I have to comply with every tiny little
thing. You know? This is a case. Its a big case. Theres a
lot of stuff here. You know? The Supreme Court, the Maryland
appellate courts have all said you know, you cant hold a pro
se litigant to these stringent things that --
THE COURT: Well, youre going to need a case to cite
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that says that.
MR. KIMBERLIN: Out of the Supreme Court?
THE COURT: Any court except maybe the 9th Circuit.
Youre going to need a case that says that. You just cant
stand up in court and, no one can do that, stand up in court
and just make these bold declarations. You can do that in
almost every other institution in America, but not in court.
If you say something, you need to back it up.
MR. KIMBERLIN: Okay. Well, obviously Haines v.
Kerner --
THE COURT: Haines versus who?
MR. KIMBERLIN: Kerner. H-A-I-N-E-S v. Kerner. I
believe its a Supreme Court case. And I believe it talks
about pro se litigants.
THE COURT: Kerner? How do you spell Kerner?
MR. KIMBERLIN: Thats something thats so --
THE COURT: Kerner with a K or with a C?
MR. KIMBERLIN: K-E-R-N-E-R. I believe so.
THE COURT: Okay. Anything else regarding discovery?
Because we dont have two sets of rules, one rule book for pro
se litigants and one rule book for lawyers. That would be an
absolute disaster. Theres no requirement that a person have a
lawyer. Speaking of the constitution, one has the right to
represent oneself if one chooses to do so. But youre not
going to get any special dispensation just because you choose
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to represent yourself. Now, people choose to represent
themselves for a lot of reasons. And so were not going to get
into that. Probably the most common reason is the cost of
hiring counsel to represent them in cases. But it would be
fundamentally unfair if people could come in off the street and
represent themselves in cases where the other side is
represented by counsel and the Court would set aside the rules
for the person that is representing him or herself and then
hold the side with the lawyer to the rules. That would be
fundamentally unfair.
MR. KIMBERLIN: Your Honor, Im not asking for any
special treatment, but Im saying if I let them know in a pre-
trial statement ordered by Judge Rubin to give them the
witnesses and we all sign it as a joint statement, then thats
the witnesses. You know? Why should I have to come back in an
interrogatory and repeat that what they already know? I didnt
just decide that Im not going to have these witnesses. I just
submitted this in June. You know? And a couple of weeks
later, theyre saying, oh, you didnt say the same thing you
said in the pre-trial statement.
THE COURT: Well, the interrogatories is a little
more detailed than that. Theres a purpose for these rules
that has been time tested. Thats the reason for
interrogatories in depositions. And it has to do with
preparing for trial. A pre-trial statement is something
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entirely different. A pre-trial statement is required to be
filed for the Court, not for the other side.
MR. KIMBERLIN: All right. Well, in those same
interrogatories, they asked what documents you will use and I
gave them 3,000 pages of documents. Three thousand pages,
roughly. And I referred to this in the interrogatories.
So as a pro se litigant, I felt like I was giving
them notice, when they gave me no notice. I have not one
single document from them as to what theyre going to put on,
not a single document except one e-mail. So I give them 3,000
pages of documents and they come in to you and argue that I
shouldnt be allowed to put on a case because I have no
evidence because I didnt state it in that particular
interrogatory. I stated it in another interrogatory. I stated
it in another interrogatory. I said heres what Ive got,
right here, 3,000 pages. Thats in another interrogatory.
Because I didnt state it in the first interrogatory but I
stated it in the third interrogatory?
Im basing this case on their statements, their blog
posts, their tweets, their radio programs. Thats what this
case is based on. They have all that. Its right here.
THE COURT: And you understand that when you sue
somebody you have to be very specific with what youre alleging
each particular individual did, not they, and you have to be
able to prove that in a manner that is consistent with the
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rules of evidence. Im not going to set aside the rules of
evidence because a person is a pro-se litigant.
MR. KIMBERLIN: Im not asking you to.
THE COURT: If its not admissible with a lawyer,
its not admissible pro se.
MR. KIMBERLIN: Right. And if a party gets on the
stand and I pull out a blog post and I say did you publish this
blog post on your blog, then Ive shown that its, Ive given a
foundation for that. I mean, thats what Im going to do.
Thats this case, basically.
MR. OSTRONIC: Your Honor, first of all about the pro
se stuff, Your Honor, Mr. Kimberlin is a much more experienced
litigator than I will ever be. Youve been appearing before
courts here in and the Federal level. He has way more
experience than Ill ever hope to have is all I can say in that
regard, Your Honor. The interrogatory that you, as you pointed
out there --
THE COURT: Well, just because you appear in court a
lot of times doesnt mean that. Some people have ten years
experience and some people have the same experience ten times.
I mean --
MR. OSTRONIC: Fair enough, Your Honor. Fair enough.
But I will say the list of witnesses that was on the, obviously
in the pre-trial, all it was --
THE COURT: Well, youre required to answer in
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writing.
MR. OSTRONIC: Right.
THE COURT: Thats just a rule. I didnt just make
that up. Thats a rule. You as a lawyer are required to do
it. Plaintiffs and defendants that are non-lawyers are
required to do it. The rules dont discriminate. They apply
the same to everyone. But, you know, I dont like trials in
limine because some of these issues look different when they
come up in trial than they do when theyre being argued in a
motion in limine.
MR. OSTRONIC: I appreciate that --
THE COURT: Its very difficult to do that. For a
long time, Maryland didnt even entertain motions in limine.
But we do now. Our rules of evidence pretty much parallel the
Federal rules in most cases. Is there anything else
preliminary?
MR. KIMBERLIN: Just that I want to mention a couple
of things. He tried to finesse this one year statute of
limitations on defamation. Theres a three year statute of
limitations on false light in the State of Maryland. So for
him to try to limit me to one year for the defamation and three
years for the false light doesnt make much sense.
And secondly, as far as damages, as the 4th Circuit
said and the Maryland Appeal Courts have said --
THE COURT: Youre doing pretty good with all these
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circuits, 4th, 7th, 9th, 5
th
.
MR. KIMBERLIN: Well, I try to do my job, Your Honor.
THE COURT: Well, this a circuit court. Go ahead.
MR. KIMBERLIN: If a statement constitutes defamation
per se, however, harm to reputation is presumed, damages may be
awarded on the basis of that presumption when the plaintiff has
demonstrated malice by the speaker. So theyre saying that I
have to come in and show that Ive spent $6,000 on my
daughters therapy, you know, therefore thats compensatory
damages or something.
But the Court of Appeals and the 4th Circuit state
where theres defamation per se, where somebody says that you
committed a crime that you did not commit, that its defamation
per se. And the damages are presumed and the jury can make the
determination of damages without a listing of yes, $6,000 for
this guy, I dont have to do that. Its damages per se. Im
not saying some tiny little peccadillo that these guys said
about me. Im saying they accused me falsely of crimes, that
this has harmed me. It has harmed my reputation. It has
harmed my family. Thats what this jury is going to decide.
MR. OSTRONIC: You still have to prove falsity. And
thats where hes going to have a problem, Your Honor.
MR. KIMBERLIN: I will prove falsity. I will prove
falsity. And of course, as you mentioned, truth is the defense
that they have to come up with.
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MR. OSTRONIC: No, truth is not a defense.
MR. KIMBERLIN: Well, truth is a defense to
defamation. And they cannot prove anything about pedophilia,
nothing. Zero.
MR. OSTRONIC: I hope plaintiff doesnt think that we
have to mount a defense to the truth. Plaintiff has to prove
the falsity of the case and he will have a problem with that
element.
THE COURT: The opposite of falsity is truth, and you
have to, when you allege someone has made a false statement,
you have to show that it was false and if the statement is
false, then thats the end.
MR. KIMBERLIN: Right.
THE COURT: If you can prove that.
MR. KIMBERLIN: Well, I intend to. I intend to prove
it.
THE COURT: But the jury has to also know what it is
that youre disproving, in other words, what these allegations
are.
MR. KIMBERLIN: And probably because of your sage
advice, I may not get into the terrorist issue.
THE COURT: Well, just for the record, that was the
courts rulings and not advice. I dont want to sound like Im
giving legal advice. All right. Anything else?
MR. KIMBERLIN: No.
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MR. OSTRONIC: No, Your Honor. You understand now
what well be bringing up during the trial as to limitations,
et cetera, so.
THE COURT: Sure. And I want to make it very clear
and for plaintiff to understand in this case sometimes people
who represent themselves go away with the notion that somehow
they were treated unfairly. If adhering to the rules of
procedure and the rule of law is unfair, then so be it. But
this Court makes every attempt to make sure that both sides are
treated fairly. And that would include if theres counsel on
the other side whos done the job as counsel apparently has in
this case, the rules apply to them as well. And so you need to
understand that.
Otherwise, the court system completely breaks down.
If every day somebody comes into court and says look, Im not
represented and maybe this evidence shouldnt be admissible,
but Im not a lawyer, so this hearsay evidence should come in.
Oh, no, no, no. It doesnt work like that. That would be a
total disaster, not to mention how fundamentally unfair it
would be. And we do have some sad cases where people represent
themselves and perhaps might even have a substantial claim, but
they cant prove it. So, you dont decide cases based on
sympathy or based on the fact that the other side might have
professional representation as is the case here. Just like, I
mean, no, Im going to stay away from football analogies. Ill
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just stop there. But we play by the rules here.
In the district court, I know youve been in district
courts. In the district court, the court does and can relax
the rules. Why? Because in district court, people file $17
lawsuits. And you couldnt even get two minutes of a lawyers
time for a $17 lawsuit. And so the district court doesnt
expect citizens with small claims, my neighbor cut a limb off
my tree or something, to go out and hire a lawyer at a cost of
several hundred or maybe a thousand dollars more than the
actual damages in the case. So in the district court, the
rules are relaxed. But in this court, theres no provision for
us doing that and we dont relax the rules.
Now, I know sometimes judges might stretch a little
and give a pro se litigant some consideration that the rules
dont provide for. But in a serious case like this where the
outcome of the case is extremely impactful on both sides, dont
expect that the rules will not be applied. They will be
adhered to. Now, anything else?
MR. OSTRONIC: No, Your Honor. Thank you.
THE COURT: Now what about voir dire?
MR. OSTRONIC: Voir dire? We introduced the
questions as part of our pre-trial.
THE COURT: Well locate that. And did you submit
voir dire or --
MR. KIMBERLIN: It was a joint statement.
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MR. OSTRONIC: It was a joint statement.
THE COURT: Okay, thats fine. All right, well take
a break. Well pick the jury. And if theres anything
preliminary after that, its easier to get the jury picked.
Thats done. And then other things we can deal with. Ill
deal with the issue of your opening statements later. Yes,
sir?
MR. KIMBERLIN: I have two questions. I filed some
subpoenas for some witnesses. One of them called on Friday and
said that they were filing a motion to quash and asked me to
agree. I did not agree. I told them that if they want to try
to quash the subpoena, theyve got to come in. So I havent
seen them or heard from them since. I havent checked my e-
mail.
THE COURT: Well, well deal with that. If the
witness is under subpoena and the witness is not here, well
deal with that issue.
MR. KIMBERLIN: Okay. All right. Thank you.
THE COURT: All right. Well take a recess and well
get the jury in.
THE BAILIFF: All rise.
THE CLERK: The Court stands in recess.
MR. OSTRONIC: Your Honor?
THE COURT: Yes, sir?
MR. OSTRONIC: Are you going to make the rulings
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after you come back?
THE COURT: Yes.
(Recess)
(The prospective jurors entered the courtroom.)
THE COURT: Ladies and gentlemen, follow the
bailiffs instructions. Follow the bailiffs instructions.
(Bench conference follows:)
THE COURT: I want to make sure that we dont run
into problems. Now, the allegation of the case, okay. So the
parties are Brett Kimberlin and the defendants Robert Stacy
McCain, William John Hoge, III, Aaron Walker and Ali Akbar.
Now, what do you think the allegation of the case should be?
In other words, what is it that this case is about? So the
plaintiff claims that defendants --
MR. KIMBERLIN: Defamed him and portrayed him in a
false light.
THE COURT: How? Where?
MR. KIMBERLIN: In the State of Maryland, on the
internet, online.
THE COURT: Portrayed him in a false light and
defamed his character?
MR. KIMBERLIN: The defendants on the internet
engaged in defamation and portrayed me in a false light.
THE COURT: Okay.
MR. KIMBERLIN: I mean, thats the gist of the case.
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THE COURT: Do you agree with that?
MR. OSTRONIC: Well, thats what hes alleging,
defamation and false light.
THE COURT: Thats whats in here.
MR. OSTRONIC: Defamation and false light, yes.
(Bench conference concluded.)
THE COURT: Good morning ladies and gentlemen of the
prospective jury panel. Im Judge Eric Johnson of the Circuit
Court for Montgomery County, which court you are in. We are
about to begin a civil jury trial. But before we go any
further, is there any member of this panel for whom English is
a second language? Anybody have English as a second language?
All right, would those of you on the right side of the
courtroom, on this side, please stand? What is your number,
maam?
JUROR NO. 22: 22.
THE COURT: And whats your primary language?
JUROR NO. 22: Polish.
THE COURT: And English is not a problem for you,
correct?
JUROR NO. 22: No, sir.
THE COURT: All right, thank you. Have a seat,
please. Yes, maam, whats your number, please?
JUROR NO. 45: 45.
THE COURT: And your primary language?
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front of jurors. Why? Because people dont know what kind of
jury youre on. And they shouldnt be saying things that could
potentially influence you. So thats the reason you have to
keep those badges prominent.
So if you get in the elevator and all of a sudden it
gets quiet in the elevator, its not your cologne. Is that
they see that badge, and oops, theres a juror and they stop
talking about whatever it is theyre talking about, because
they dont want to say anything that could potentially
influence a juror. So thats the reason that you use those
badges. And they will be collected at the end of the day and
returned to you the next day. With that, please take a few
minutes to break. I dont know that well get much more beyond
just opening statements today and youll be released and then
tomorrow well hear the meat of the case, so to speak.
So please dont leave the floor, because your break
isnt going to be that long. Okay? Juror No. 2A, you are the
foreman of this jury. So congratulations. All right, thank
you. You can step out into the hallway. Leave your pads on
your seats.
(The jury left the courtroom.)
THE COURT: Counsel, could you approach?
(Bench conference follows:)
THE COURT: The reason were going to stop at about
probably 3:15, this case came to me Friday late. And it was
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not assigned to me as you probably know. And unfortunately, I
have a dental appointment.
MR. KIMBERLIN: Dental?
THE COURT: A dental appointment. And theyre
pretty hard to get. And so I dont want to cancel it. I hope
he doesnt put the pliers on me --
MR. KIMBERLIN: I hope youre here tomorrow.
THE COURT: So were going to stop then. But I think
youll get this case in.
MR. OSTRONIC: I think so too, Your Honor. I would
say that if its all the same, I dont see my opening statement
being more than a couple of minutes. I would just as soon get
it done all at the same time.
THE COURT: Now, with opening statement, we need to
be careful in terms of whats said and not said. And Im not
going to go beyond that. Ill just -- I dont want to create
issues that dont exist.
MR. KIMBERLIN: Do we have a time limit?
THE COURT: Well, your time limit should be logical.
I mean, theres a reason --
MR. KIMBERLIN: I mean, obviously youve got to
leave, but --
THE COURT: No, but theres a reason why Madison
Avenue has a commercial on T.V. every 12 minutes. You talk to
people much longer than that and youve lost them. All an
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opening statement is what this case is about. Its not --
remember, its not evidence. So they cant consider it as
evidence.
MR. KIMBERLIN: I understand.
THE COURT: Its just -- I always call it like a
preview to the movie about to come -- like a trailer. This is
what this case is about. Thats all. Thats all it is.
MR. OSTRONIC: I agree, Your Honor.
THE COURT: And closing is -- kind of using old
military parlance, you know, in opening you tell them what
youre going to tell them, what it is youre going to tell
them, and then at the trial you tell them and then at the end
you tell them what you told them. You know? Okay.
MR. OSTRONIC: Your Honor, I was going to say though
that --
THE COURT: And you all can take a five minute break
too, if you want to.
MR. OSTRONIC: No, its not that, Your Honor. I was
just going to say that if opening statement is only going to
take a few minutes, I would just as soon do that --
THE COURT: Oh, you want to --
MR. OSTRONIC: Id just as soon do it tomorrow
morning and go right from opening statements into the case
itself instead of breaking it up for no apparent reason.
Otherwise, were just talking to them and then we just kind of
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leave.
THE COURT: Heres the problem. The length of this
trial -- we will finish tomorrow, but thats 45 minutes from
now. You think if we give opening statement --
MR. OSTRONIC: Its not a question of getting it in.
Its just so that --
THE COURT: You rather for the continuity purposes?
MR. OSTRONIC: Thats the only reason Im saying
that.
MR. KIMBERLIN: You know, these people are smart. I
think theyd remember what happened from day to day.
MR. OSTRONIC: Okay. To me, its just more a
stylistic -- but Ill go with your way.
THE COURT: I think well go ahead.
MR. OSTRONIC: Are we going to do the rulings now?
THE COURT: The rulings? Oh, yes, yes. Lets see --
I dont know. Im going to step down for a minute. Im going
to step back in about five minutes and Ill make those rulings
with respect to the issues that are before us and then well
open and then send them home. And in fairness to them, you
know, theyve been sitting here all day. Its kind of nice if
they know something about what the case is.
MR. KIMBERLIN: Right.
THE COURT: I say this for the record, I know youre
not a lawyer, but doors can be opened in opening statement that
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can cause things to be admissible that may not otherwise be
admissible if that door wasnt opened, if you read what Im
telling you.
MR. KIMBERLIN: Of course.
THE COURT: And I know counsel youre well aware of
that.
MR. OSTRONIC: Im well aware.
THE COURT: But you need to be careful.
MR. KIMBERLIN: I appreciate that.
THE COURT: You need to be careful about that.
Okay, well take a brief recess.
(Bench conference concluded.)
(Recess)
THE COURT: There were two motions in limine
regarding how the trial will proceed. The first one -- Ill
just deal with the second one first, and that was the motion
that would essentially prohibit the admissibility of a
conviction that was more than 15 years old.
Now, I want to be clear. That conviction, is that
the perjury conviction or another conviction?
MR. KIMBERLIN: I mean, it could be either one.
THE COURT: Well, actually, its very important
because youre bringing a claim alleging that certain
information based upon certain events in your past with respect
to the record is defamatory, and you dont get to have it both
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ways. You cant on one hand say theyre defaming me and
theyre doing it by bringing up something thats 15 years old.
You dont really get to have it that way.
And so are you suggesting that the perjury conviction
should not be talked about or something else?
MR. KIMBERLIN: No. I think that if I testify, that
they shouldnt be used for impeachment purposes unless I open
that door. Thats what Im asking.
THE COURT: With respect to the 15-year-old
conviction? The one thats over 15 years?
MR. KIMBERLIN: Yes, its 40 years. Its 35, 40
years.
THE COURT: And thats the conviction for perjury
when you were a juvenile?
MR. KIMBERLIN: Right. And the other conviction for
the explosive devices was 1980.
THE COURT: Well, the problem is that is one of the
very main grievances that you have.
MR. KIMBERLIN: Right.
THE COURT: And so what youre saying is that
something happened. It was a long time ago. Theyre writing
about it. And its causing me harm. Now in all of the cases
that were recited with respect to conviction by the way are not
civil cases. They are criminal cases. And theres some very
good reasons why that rule exists with respect to criminal law.
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I dont know, I havent found any case that would prohibit the
admission of evidence that a person was convicted of crimes in
the past, more than 15 years ago, where that evidence was kept
out in a civil case.
Now, theres still time, if you can come up with some
explanation or some case, I will certainly hear it. But at
this point, I will deny that motion in limine and just leave it
at that. So Ill deny that motion.
With respect to your motion to deny the defense
motion to prohibit your testimony regarding a perjury
conviction, I will deny that defense motion. The Courts and
Judicial Proceedings Article says a person convicted of perjury
may not testify. Now, every place else in the statute, when
they want to prohibit -- when the statute seeks to prohibit
certain conduct or to order certain conduct, the word shall is
used. In other words, if there wasnt any discretion available
to the Court, the statute would read shall not testify. And it
doesnt. It says may. Not only that, all of the cases seem to
deal with the issue of whether or not an individual was
actually convicted of perjury or whether that individual
committed perjury. If you commit perjury but are not convicted
of perjury, then the statute doesnt apply. Thats what the
cases seem to say.
But in this case, I dont find any case that says
that the Court has no discretion in this case, and so the Court
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will allow you to testify but you will testify clearly within
the confines of the rules of evidence. And so the fact that
youll be able to testify does not give you carte blanche to
just get up on the witness stand and say anything you want to
say. It doesnt work that way.
MR. KIMBERLIN: Right.
THE COURT: And so I suppose thats pretty clear.
You dont have to testify, thats up to you. Now, I dont know
that this will come up in this case, but I can see it looming.
If questions that I ask about which an individual takes the
fifth amendment to the constitution or asserts his or her fifth
amendment rights under the constitution, on a criminal case,
obviously that information, whatever it is that that individual
is asserting the fifth for cant be mentioned, it cant be
talked about, it cant even be mentioned that he or she took
the fifth.
But on a civil case, if a person asserts his fifth
amendment constitutional rights, then theres a presumption
that if he had answered the question, that it would not have
been favorable for him. So thats something that you need to
understand with respect to --
MR. KIMBERLIN: I dont think thats going to come
up.
MR. OSTRONIC: Your Honor?
THE COURT: Yes?
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MR. OSTRONIC: May I --
THE COURT: Sure.
MR. OSTRONIC: You opened the door for plaintiff to
come back to you tomorrow with other case law. May I also come
back to you on the issue?
THE COURT: Oh, absolutely. Ill give each side a
fair opportunity to respond. If he cites some case that says
anything contrary to the motion that I granted, Ill be
allowing you to -- or either side -- to get into information
regarding these convictions which he says were a long time ago.
This is a civil case. And the very basis of what
gets us here is that, and you cant on the one hand say, yeah,
I did that but you cant talk about it, and Im going to sue
you for damages.
MR. OSTRONIC: Well, my understanding also is 609
strictly deals with impeachment of the witness. So if the
witness was up there and youre attacking the credibility, you
could still bring it in on other grounds, which would still
have been open.
THE COURT: Well, well deal with that if it comes up
under those circumstances.
MR. OSTRONIC: Okay. But I would like the
opportunity to re-introduce any facts or case law about the
perjury conviction.
THE COURT: All right.
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MR. OSTRONIC: Thank you, Your Honor.
THE COURT: Now, are you ready to open?
MR. OSTRONIC: Your Honor, can I just do a real
quick, two minute consultation with my client? Because all of
a sudden now we have somebody testifying that we had no idea
was testifying five minutes ago.
THE COURT: Well, hes not going to testify in five
minutes. Thats for sure. So youll have time to do that
after, when we stop.
MR. OSTRONIC: I understand that, Your Honor. But
were also talking about possible position.
THE COURT: Okay.
MR. OSTRONIC: Yes, Your Honor.
THE COURT: Now, the window of opportunity for
purposes of opening has kind of narrowed now. So it might be
better to just do it in the morning.
MR. OSTRONIC: That would be my preference.
MR. KIMBERLIN: Im okay with that.
THE COURT: Because I dont want to have you compact
it to five minutes. That wont work.
MR. OSTRONIC: Perfect, Your Honor.
MR. KIMBERLIN: Thats great.
THE COURT: In light of our conversation at the bench
regarding the timing issue. So you can have a seat. Mr.
Clerk, would you mind bringing the jury in? Im going to
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dismiss the jury.
Either side invoking the rule on witnesses?
MR. OSTRONIC: I will, Your Honor.
MR. KIMBERLIN: No, Im not.
THE COURT: They have, so -- ladies and gentlemen,
when this case starts, if you are a witness in this case -- now
that doesnt include parties. If youre one of the people
being sued, you stay in the courtroom. But if youre a witness
in this case, then you must remain outside the courtroom. You
cannot discuss your testimony amongst yourselves or anyone
else. If you do, your testimony is subject to be stricken an
you wont be helping the party that youre testifying for.
MR. KIMBERLIN: Is that after opening statements?
(The jury entered the courtroom.)
THE COURT: Ladies and gentlemen, you dont have to
take your seats, just come up to the well. Counsel will
remain, but Im going to excuse you. And if you could arrive
at 9:00 in the morning, we will get through this case. In an
abundance of caution, that is the plan. Now, the best laid
plans of mice and men often run awry. But our goal is to
accomplish what we have set out to accomplish.
So please remember -- you can take your juror badges
off and just lay them on that table. Your notes are on your
seats and we will see you in the morning. Mr. Foreman, Ms.
Polan is going to come out and shes going to ask you are all
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of your jurors present before she brings them into the
courtroom. They will not be brought in until all of the jurors
are present. We dont do, you know, three or four or anything
like that. Well wait until everybody is here and then well
bring you in. So if you could arrive at 9:00, well be ready
to go. Thank you.
THE CLERK: If all jurors could just wait outside,
Ill get you your parking passes and stuff.
THE COURT: Wait over by the elevators. Hell bring
you your parking passes for tomorrow.
(The jury was excused for the day.)
THE COURT: Now, you were about to --
MR. KIMBERLIN: About the exclusionary rule -- thats
after opening statements, right?
THE COURT: No, during opening statements.
MR. KIMBERLIN: During opening statements? So
witnesses are excluded during opening?
THE COURT: Witnesses have to remain outside.
MR. KIMBERLIN: Okay.
THE COURT: And you understand the purpose of the
rule?
MR. KIMBERLIN: Right, I understand.
THE COURT: So your witnesss testimony cannot be
influenced by things that they hear in court.
MR. KIMBERLIN: But after they testify can they come?
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THE COURT: If theyre testifying and theyre
finished and theyre not going to be recalled, then the witness
can sit in the courtroom if they want to.
MR. KIMBERLIN: Great.
THE COURT: But if they do that, theyre subject to
being excluded from being recalled.
MR. KIMBERLIN: I understand.
THE COURT: And both sides must instruct your
witnesses that they cant talk about the case among themselves
or with each other until its over and done with. Any special
equipment anybody needs?
MR. KIMBERLIN: Ill probably be using a computer
tomorrow, but I can bring it, for audio.
THE COURT: If youre going to use it -- if you need
the Court to provide anything, you need to go down to technical
services on the terrace level and I hate to tell you this, but
theres a cost. They dont just provide the equipment.
MR. KIMBERLIN: Ill bring my own.
THE COURT: Its not much, but there is a cost, if
you need equipment that we can provide in technical service.
We can provide almost anything equipment-wise, but there is a
cost for it, because it doesnt come free to the county.
MR. KIMBERLIN: Right. I understand.
THE COURT: Anything else?
MR. OSTRONIC: No, Your Honor.
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THE COURT: Now, there are no non-pattern jury
instructions, are there?
MR. OSTRONIC: Not from the defense side, Your Honor.
MR. KIMBERLIN: Not that I know of.
THE COURT: Theyre normal Maryland civil pattern
jury instructions.
MR. KIMBERLIN: And we listed those I believe in our
pre-trial.
THE COURT: You did list them in your pre-trial
statements. Is there any other ticking time bomb -- well,
thats a wrong metaphor. Are there any issues laying out there
that are going to come up that you can envision?
MR. KIMBERLIN: I dont think so.
THE COURT: Sometimes we have to be very careful in
our selection of metaphors. I always call counsel to task when
they tell me about black sheep in the family. I like black
sheep. All right.
MR. KIMBERLIN: Thank you.
THE COURT: Ladies and gentlemen, well see you in
the morning. Now, word to the wise, my law clerk is out giving
the jurors their passes for parking tomorrow. But can you see
what we have tomorrow?
THE CLERK: Yes, Your Honor. 9:15 reconsideration.
THE COURT: Thats it?
THE CLERK: And a 9:30 VOP.
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THE COURT: Okay, these matters are preliminary
things that we set in the morning. But well start with you
all and then when we take a break, well dispose of those -- a
violation of probation which probably isnt going to go, and
then a reconsideration of a sentence, which is probably going
to be brief. And then well do that on recess and well start
with you.
Well hear opening and then after your opening, well
take a break. Ill do those things. And then well be back
with your first witness. Who is your first witness going to be?
MR. KIMBERLIN: My daughter, Kelsie.
THE COURT: Okay. All right. Any issues with that
other than what we discussed?
MR. OSTRONIC: Well, we discussed earlier the problem
of bringing any witness, period. And Ill make the challenge
at that time.
THE COURT: Okay.
MR. OSTRONIC: Which is what you want, right, Your
Honor?
THE COURT: Sure. All right, ladies and gentlemen,
please have a good evening. Well remain adjourned.
MR. OSTRONIC: Thank you, Your Honor.
THE BAILIFF: All rise.
THE CLERK: The Court stands in recess.
(The proceedings were concluded.)
pm 137

! Digitally signed by Patricia Musso
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. 380966
BRETT KIMBERLIN
v.
AARON WALKER, ET AL


By:


_________________________
Patricia Musso
Transcriber