You are on page 1of 48

In the Court of Appeals

of Maryland
Petition # 93
September Term, 2016

Appeal from the Circuit Court of Montgomery County, Maryland
(Hon. Eric Johnson, Presiding)


Aaron J. Walker, Esq. (Va Bar# 48882)

7537 Remington Road
Manassas, Virginia 20109
(703) 216-0455 (No fax)

The petition for writ of certiorari (Petition) should be denied for two reasons:
first, because there was no error below and, second, because of violations of Md. Rule 8303(b), particularly by serial misrepresentation of the record below and attempts to skirt
this Courts limitations on the length of such petitions.
The Petitioner raises three alleged questions. First, he claims that the lower courts
have erred by failing to find that MD. CODE Cts. & Jud. Proc. 9-104 (which prohibits
convicted perjurers like the Petitioner from testifying) is unconstitutional. Second, he
claims that the lower court erred by affirming that in all cases of alleged defamation
including defamation per sethe plaintiff bears the burden of proving falsity. Third, he
claims that the Court of Special Appeals held that only the testimony of the Petitioner
could have rebutted the allegedly defamatory claimsmost obviously that he is a
Each of these can be disposed of quickly. In relation to the claim that 9-104 is
unconstitutional, the Petitioner is appealing a victory and is, therefore, procedurally
barred from pursuing an appeal on that question. In relation to the rule that plaintiffs in
defamation actions must prove falsity, the Petitioner doesnt argue that this rule should be
overturned: rather, he misstates the law by claiming that this Court had not ruled that in
all defamation actions, truth is no longer an affirmative defense to be established by the
defendant, but instead the burden of proving falsity rests upon the plaintiff, Telnikoff v.
Matusevitch, 347 Md. 561, 594 (Md. 1996). Finally, in relation to the alleged ruling of
the Court of Special Appeals, the Petitioner misstates the Courts ruling. What that court

actually ruledthat the Petitioner had not submitted sufficient evidence to create a
question for the jurywas correct.
Additionally, the Petitioner has committed serial misrepresentation of the facts and
proceedings below and has attempted to place argumentative material in his Appendices
as a method of skirting this Courts limitations on length, providing an additional reason
to deny certiorari. For all of these reasons, this Court should deny the Petition and,
indeed, should consider sanctions against the Petitioner for deliberate serial
misrepresentations of fact and other violations of this Courts rules.
Perhaps the most absurd element of the Petition is that the Petitioner believes that
the first and most important question justifying a writ of certiorari before this Court
relates to a motion that he won. Specifically, he asks this Court to declare that MD. CODE
Cts. & Jud. Proc. 9-104, which bars convicted perjurers like the Petitioner from
testifying, is unconstitutional. However, the Petitioner filed a motion to allow him to
testify, and it was granted. The Petitioner was told he could testify (R. No. 227-29,
Record Extract D (hereinafter E.D.) 11-12), and he chose not to. Therefore, he has no
right to appeal that rulinghe has no defeat on that question to appeal.1
The Petitioner tries to side-step this limitation on the right of appeal by claiming
that although he won the right to testify, he was unfairly surprised by his victory:
1 See, e.g., Mugford v. Mayor, 185 Md. 266, 44 A. 2d 745, 746 (1946) (the court needs
no authorities to support the proposition that one cannot appeal from a decree wherein the
relief he prays for has been granted).

In the instant case, Appellant [sic] repeatedly tried to get pre-trial rulings on
the constitutionality of Rule 9-104 [sic]2 so he could prepare for trial but the
courts [sic] refused to make those rulings or rule on whether he could
testify. If Appellant [sic] had known before trial that he would be allowed
to testify, he would have done so and then had a dozen character witnesses
testify as to his good character in business, personal and family matters.
Petition, p. 8. There are several difficulties with that passage.
First, the claim that the Petitioner repeatedly tried to get pre-trial rulings on the
constitutionality of 9-104 or otherwise sought to secure the ability to testify is false. The
first time the Petitioner tried to do so was when he filed a Motion to Find Courts Article
9-104 Unconstitutional or, in the Alternative, not Applicable in this Case on August 8,
2014, (R. 222) the Friday before the Monday when the trial was to begina motion that
was ultimately granted the day before the presentation of the evidence began (R. 227-29).
The Petitioner does not cite any other specific instance when he asked for a ruling that he
could testify, a fact that was devastating to the Court of Special Appeals ruling below:
Mr. Kimberlin also contends that the timing of the courts ruling, which
was made literally minutes before testimony was to begin, left him
wholly unprepared to take the stand. But he never raised that complaint at
any stage of the circuit court proceedings, nor did he imply to the trial court
that he suffered any prejudicehe did not ask for a postponement (and we
dont mean to suggest that he should have been granted one if he had), nor
did he offer any practical reason why he couldnt prepare his own
testimony for a trial when he had been seeking to assert his right to testify
all along.
In short, his real objection isnt about the outcome of the circuit courts decision but
rather about the timing, and the Petitioner has not preserved that objection.3

The Petitioner continually forgets that he is challenging a statute, not a rule.

Indeed, the complaint that he didnt have enough time to call character witnesses was
raised for the first time in his reply brief in the Court of Special Appeals.

Second, it is an absurd objection: I wasnt prepared to win my motion! The

Petitioner is no babe in the woods when it comes to litigation.4 He can be expected to
adjust his trial strategy for unexpected defeats on questions of evidence, as well as
unexpected victories. Particularly on the subject of character witnesses, the Petitioner
does not explain why he couldnt have them ready to show up in case he won, only that
he didnt have them ready to show up, most likely because this alleged dozen character
witnesses are probably a figment of his imagination.5
Therefore, the Petitioner is procedurally barred from raising this issue on appeal.
He won the right to testify in spite of 9-104, and one cannot appeal victory. Meanwhile,

As Judge Titus wrote about the Petitioner, The Plaintiff is no stranger to the processes
of this Court. Kimberlin v. KimberlinUnmasked, Case No. 8:13-cv-02580-RWT, 3-4 (D.
Md., Feb. 28, 2014). In his opinion, Judge Titus went on to list ten different cases he had
participated in the U.S. District Court for the District of Maryland alone. He has filed
more cases in that court since then.
The claim that the Petitioner has exactly a dozen witnessesnot an odd number but
exactly twelveis particularly hard to credit when 1) he has never named these alleged
witnesses and 2) apparently none of them could show up to court on short notice. In
relation to the latter point, even if it is assumed that the Petitioner had a dozen witnesses
lined up to testify on his behalf and he didnt tell any of them that he would need their
help until he was told he could testify on August 11, 2014which is incredibly poor
planning on his partis the Petitioner telling this Court that all twelve of them could not
show the next day when the presentation of evidence began? These are presumably
persons who like the Petitioner, who dont need a subpoena to come to court on his
behalfso why didnt at least one of them show up?
In any case, there is no evidence developed at trial that there was a single person willing
to vouch for the Petitioners honesty.
It may seem harsh for this Respondent t conclude that the Petitioner is probably being
dishonest, but this Court will see throughout the remainder of this Opposition that the
Petitioner is in the habit of misstating the truth even after his misstatements are pointed
out to him and even when they can be easily detected. See, e.g., pp. 9-14 (pointing out
that Appendix E repeats falsehoods about the record below that this Respondent had
previously pointed out to the Court of Special Appeals).

the Petitioner failed to preserve for review his real objectionthe timing of the circuit
courts favorable decisionand, therefore, he cannot raise it for the first time on appeal.
The Petitioner argues that in defamation per se cases that falsity is presumed under
Maryland law. However, in order to do so, the Petitioner had to falsely claim that that one
case has not been overturned and had to take another case grossly out of context in order
to imply that a discussion of how the law used to be is a discussion of how the law is
today. In short, he had to misstate the truth about what the law of Maryland says. Most
remarkably, he has made the exact same deceptive argument before the Court of Special
Appeals, and he has been previously corrected by this Respondent on this point, proving
that his deception is knowing and intentional.
First, the Petitioner cites to Wetherby v. Retail Credit, 235 Md. 237, 241 (1964) as
saying that, in defamation per se cases, falsity is presumed and truth must be proven by
the defendant. That was a correct statement of the law in 1964, but that case was
overturned by cases such as Jacron Sales Co. v. Sindorf, 276 Md. 580, 597 (1976), which
stated that
truth is no longer an affirmative defense to be established by the defendant,
but instead the burden of proving falsity rests upon the plaintiff, since,
under this standard, he is already required to establish negligence with
respect to such falsity.
Lest there be any question whether Jacron applied to every case, this Court has stated in
Telnikoff, 347 Md. at 594 (previously cited supra p. 1) that

We also held in Jacron that, in all defamation actions, truth is no longer

an affirmative defense to be established by the defendant, but instead the
burden of proving falsity rests upon the plaintiff, 276 Md. at 597, 350
A.2d at 698.
(boldface added). Therefore, Wetherby is no longer good law, and the Petitioner is simply
wrong to say otherwise.
However, it is plain that the Petitioner is not only wrong but also intentionally
misstating the law with another citation. The Petitioner writes that [i]n Hearst
Corporation v. Hughes, 466 A.2d 486 (Md. 1983), the Court rejected the argument that
per se defamation presumptions should be overruled[.] Petition, p. 10. He goes on to
deceptively quote from a passage in that opinion seeming to suggest that the presumption
of falsity continues to apply in defamation per se cases.
However, that quotation is taken out of context. Here is the full quotation with the
words he left out in bold:
Under pre-Gertz law, the fact finder in a defamation action predicated
on words actionable per se was permitted to assess general damages for
the presumed harm to reputation. See generally Fennell v. G.A.C.
Finance Corp., supra; Thompson v. Upton, 218 Md. 433, 146 A.2d 880
(1958); Evening News Co. v. Bowie, 154 Md. 604, 141 A. 416 (1928);
Bowie v. Evening News, 148 Md. 569, 129 A. 797 (1925); Kilgour v.
Evening Star Co., 96 Md. 16, 53 A. 716 (1902); Gambrill v. Schooley, 93
Md. 48, 48 A. 730 (1901). One reason was that [i]n the case of words
or conduct actionable per se, their injurious character is a self-evident
fact of common knowledge of which the court takes judicial notice and
need not be pleaded or proved. M & S Furniture v. De Bartolo Corp.,
249 Md. 540, 544, 241 A.2d 126, 128 (1968). See also Murnaghan, Ave
Defamation, Atque Vale Libel and Slander, 6 U. of Balt.L.Rev. 27, 35
(1976). Further, at common law, the defamatory statement was viewed to
be presumptively false. Truth was an affirmative defense so that the initial
burden of proving falsity did not rest upon the plaintiff. See Jacron Sales
Co. v. Sindorf, 276 Md. 580, 597, 350 A.2d 688, 698 (1976).

As this Court can plainly see, the discussion of the presumption of falsity (which applied
on all cases) arose in the context of discussing how the law used to be, before Gertzthat
is Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)not how the law is today.
Further, the claim that the Hearst court rejected the argument that per se
defamation presumptions should be overruled is false. The case only dealt with the
presumption of damages, and it noted the current, modified standard that presumptive
damages were only available if constitutional malice was shown as follows:
Mayo recognizes that, as a matter of Maryland law, the presumption of
harm to reputation still arises from the publication of words actionable per
se. A trier of fact is not constitutionally barred from awarding damages
based on that presumption in a constitutional malice case. A trier of fact is
constitutionally barred from awarding damages based on that presumption
in a negligent defamation case.
Hearst, 297 Md. 125-126. Thus, in a defamation per se case, a plaintiff has two options.
First, she can attempt to show constitutional malicewhich requires proof of falsity, plus
proof of knowledge or reckless disregard of falsityand then, upon such proof, enjoy a
presumption of harm and damages. Second, a plaintiff can show that the defendants
negligently published defamatory materialwhich under Jacron, also requires proof of
falsity. See Jacron, 276 Md. at 597. In either circumstance, however, falsity must be
proven by the plaintiff.
Accordingly, the case law establishes that in Maryland truth is not an affirmative
defense. Instead, in any defamation case, the falsity of the statements must be proven by
the plaintiff. Therefore, the courts below have correctly determined that the Petitioner has
failed to meet his burden of proof in this respect.

Remarkably, virtually every word in this section starting with the second
paragraph in this section and ending with the paragraph just above this one has been
directly copied and pasted from Appellee Walkers Opposition to Appellants Motion to
Reconsider and Suggestion for Reconsideration En Banc filed in the Court of Special
Appeals (with only slight alterations). That is, 1) the Petitioners Motion to Reconsider
and Suggestion for Reconsideration En Banc,6 before the Court of Special Appeals was
virtually identical to the instant Petition on this topic, 2) this Respondent had previously
pointed out the Petitioners false statements in that motion, and 3) the Petitioner chose to
make the same fallacious argument before this Court without modifying or correcting
these false statements. While this doesnt make the Petitioner any more incorrect about
the law than before, it does render his conduct sanctionable.
Next, the Petitioner resorts to misstating the ruling of the Court of Special Appeals
decision below in an attempt to claim that it incorrectly determined that he had presented
no evidence of falsity. Specifically, on page 11, the Petition states that:
The Court of Special Appeals found that since Appellant [sic] did not
testify, he failed to provide any evidence of falsity. (Appendix A at 16).
This is a gross misrepresentation of what constitutes evidence, and conflicts
with well-established case law regarding what evidence is necessary for
submission to a jury. Moreover, Appellant [sic] presented strong direct,
circumstantial and inferential evidence of falsity[.]

Hereinafter Motion to Reconsider. A true and correct copy of that motion is attached
as Exhibit A.

However, that is not what the opinion below held. In the very beginning of the section
addressing the Motion for Judgment, the Court of Special Appeals had relied on this
passage from Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 235 (2005) (internal
citations omitted):
In reviewing the grant of a motion for judgment, we assume the truth of all
credible evidence on the issue, and all fairly deducible inferences
therefrom, in the light most favorable to the party against whom the motion
is made. Orwick v. Moldawer, 150 Md. App. 528, 531 (2003).
Consequently, we may affirm the grant of the motion for judgment only if
. . . we conclude that there was insufficient evidence to create a jury
question. Wilbur v. Suter, 126 Md. App. 518, 528 (1999).
See Petition, Appendix A, p. 13 (emphasis added). So they explicitly acknowledged that
the Petitioner could have created an issue of fact for the jury by either direct evidence of
falsity or by presenting evidence from which one could fairly deduce falsity. Thus, in
context, when they note that the Petitioner didnt take the stand, that was only the most
obvious way he had failed to provide evidence of falsitybut it was not the only way he
could have done so. Therefore, the Plaintiffs claim that the Court of Special Appeals
erred is plainly false.
Turning to the claimed direct and inferential evidence that the Petitioner alleges
that he presented below, he is virtually silent about the nature of that evidence in the body
of his Petition. This is most likely because the Petitioner ran out of room, with the body
of the Petition containing 3,898 words.

However, the Petitioner improperly attempted to skirt the limitation on length by

presenting an Appendix E which lists alleged evidence of falsity and included a
narrative arguing what inferences can supposedly be drawn from each piece of evidence.
The fact that the Petitioner was inappropriately using this appendix as a way to skirt the
length limitationswithout asking for leave to exceed those limitations as is the ordinary
procedureis made all the more clear when one examines Exhibit A to this Opposition
and sees that the entirety of Appendix E is a copy-and-paste of the Petitioners Motion to
Reconsider in the Court of Special Appeals below, pp. 6-9. In other words, the Petitioner
has now placed those arguments from that Motion to Reconsider in an appendix, adding
an additional 962 words to his Petition without leave of court.
This is reason enough to strike or disregard Appendix E in its entirety. Indeed, it is
reason enough to deny the Petition. Under Md. Rule 8-303(b)(1)(A) the Petitioner was
limited to 3,900 words, and under subsection (c) [f]ailure to comply with section (b) of
this Rule is a sufficient reason for denying the petition. However, presuming it is not
dismissed for this reason and this Court chooses to consider those improper arguments,
this Respondent will counter the Petitioners copy-and-pasted arguments by copy-andpasting his prior arguments in his prior opposition to that Motion to Reconsider (with few
alterations to adapt it to this filing), beginning with the next paragraph.
It is true that in determining whether to grant a motion for judgment, a court
should assume the truth of all credible evidence on the issue, and all fairly deducible
inferences therefrom, in the light most favorable to the party against whom the motion
[for judgment] is made[,] Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 235

(2005). In Appendix E, the Petitioner attempts to claim that the lower courts have
misapplied this rule. However, rather than fairly deductible inferences from the
evidence, the Petitioner has tried to assert 1) that there were facts in evidence that were
not supported by the record below or 2) that the facts that were in evidence justified wild
leaps of logic that they did not support. Indeed, in many instances, the Petitioner wants
this Court to infer what it can not presume: that negative statements about him were false
without any evidence of falsity. Accordingly, the Petitioner has failed to show that the
lower courts failed to make any fairly deducible inference justifying a reversal of its

The Petitioner Repeatedly Misrepresents the Record Below.

As with virtually every other paper the Petitioner has filed in court, Appendix E

contains statements that are either objectively false or unsupported by the record, and it is
necessary for this Respondent to correct the record.
For instance, on Appendix E, p. 1,7 the Petitioner writes that, Appellant [sic]
introduced dozens of blog posts, tweets and graphics created by Appellees [sic] that made
defamatory statements against Appellant [sic] without any proof therein to prove their
allegations. That misrepresents what was presented to the court below as demonstrated
by the evidence log created at trial. Further, the only time the Petitioner asked for
testimony supporting any of the allegations, he was provided with a detailed presentation
by Mr. Walker8 that Judge Johnson cut off for going on too long. See E. D., pp. 96-100.


The Plaintiff has failed to paginate Appendix E. Fortunately, there are only three pages.
Mr. Walker refers to himself in the third person for stylistic purposes and to de11

After that long, detailed, and credible discussion of the evidence, the Petitioner stopped
asking for the evidentiary basis of the Respondents negative opinions.
On the first page of Appendix E, the Petitioner claims that Mr. Walker said that
the Petitioner had never been arrested, tried, or convicted for any crime related to sexual
assault. As pointed out repeatedly in filings before the Court of Special Appeals, the
Petitioner only asked Mr. Walker about his knowledge in relation to the Petitioners
criminal record in relation to sex with underage girls in Indiana, a single state. See
Record Extract D, p. 101. Therefore, it is false to suggest that evidence was put into the
record describing the totality of the Petitioners criminal record in relation to sexual
On pages one and two of Appendix E, the Petitioner claims that the criminal
charges filed against him by his own wife were filed during a mental health crisis and
that Mr. Walker helped her to craft the Application for the Statement of Charges. There
was no evidence presented that Mr. Walker helped her to write that Application, and
there was no evidence presented about the state of Mrs. Kimberlins mental health. See
Record Extract D, p. 104. Further, upon information and belief, there is nothing wrong
with Mrs. Kimberlin, and there has never been anything wrong with her.
Further, the Petitioner writes that
When Appellant [sic] repeatedly asked Appellee [sic] Walker under oath if
any official in any federal or Maryland or Virginia state office [sic] or court
ever bought into any of his accusations and allegations against Appellant,
Appellee [sic] Walker repeatedly evaded the question.

personalize this case.


Appendix E, p. 2. This characterization of the question and testimony is false. The

Petitioner asked if anybody in an official position9 believed Mr. Walker, and Mr.
Walker named Los Angeles County Assistant District Attorney Patrick Frey.10 The
Petitioner didnt like that answer and what is reflected next in the transcript11 is how the
Petitioner ranted and raved.12 The Petitioner badgered Mr. Walker as a witness, Mr.
Walker attempting to answer calmly only to get cut off13 until Judge Johnson sustained an
objection from defense counsel. There is nothing in the transcript establishing evasion,
only a bewildered defendant dealing with a plaintiff who was out-of-control.
Next, the Petitioner alleges another supposed evasion writing on page three of
Appendix E that Appellee [sic] Akbar spent five minutes on the stand evading
Appellants [sic] question about whether he had used his blog to raise thousands of
dollars based on his narratives about Appellant [sic]. Contrary to the Petitioners
assertion, that wasnt what was asked, and Akbar stated that there was no money raised
related to the Petitioner. See Record Extract D, p. 156, lines 20-21, p. 157, line 9. Since
the question wasnt asked, the Petitioner necessarily hasnt established any evasion of it.
Finally, the Petitioner writes on page three of Appendix E that Appellee [sic]
McCain testified that he was aware that the charges created by Appellee [sic] Walker for
Appellants [sic] wife were nolle prossed but [sic] that he never reported that fact on his

Record Extract D, p. 130, lines 21-25 and p. 131, line 1.

Id. at p. 131, lines 11, 14, and 21-22.
Id. at pp. 131-132.
[R]anted and raved might seem like strong words, but if this Court examines the
audio of the hearing, it will recognize that this is a reasonable characterization of the
Petitioners wild behavior.
E.g. E. D., p. 132, line 6.


blog or corrected his prior blog posts or tweets. There are two things wrong with this
First, there is again no evidence in the transcript that Mr. Walker was involved in
the writing of the Application for Statement of Charges at issue. Indeed, the Petitioner is
inconsistent on the subject. Previously, he said that Mr. Walker had merely helped her to
craft it (Appendix E, p.1)her being his wife. Now, the Petitioner says that Mr.
Walker wrote all of it, strongly suggesting that the Petitioner is having difficulty keeping
his story straight.
Second, the transcript doesnt establish that Defendant McCain didnt report that
the charges were dismissed on a plea of nolle prosequi. Rather, McCain said he didnt
remember whether he wrote such a piece and then colorfully disputed the Petitioners
claim that being dismissed on a plea of nolle prosequi proved innocence: Noll[e] pross
doesnt mean you were falsely accused. Ive had traffic tickets that were noll[e] pross.
That didnt mean I wasnt going 85 miles an hour. Record Extract D, p. 217.
In the last few copy-and-pasted paragraphs, this Respondent has shown that the
Petitioner has made a large number of false statements in Appendix E. The fact almost
all of this could be copy-and-pasted from a prior document shows that 1) the Petitioner
has made the exact same deceptive claims before, 2) this Respondent has corrected the
Petitioner before, and 3) the Petitioner has chosen to repeat these falsehoods even after he
has been corrected.

Therefore, it is reasonable to conclude that the Petitioner has

attempted to convince this Court that certiorari is justified based on his serial
misrepresentations of the record below, and that such misrepresentations were

intentional. Accordingly, these misstatements cannot support any valid argument

supporting a grant of cert.

The Petitioners Proposed Inferences From the Evidence that was Actually
Presented are Unjustified.
Likewise, even when the Petitioner is accurately describing the record below (or is

only trivially inaccurate), the evidence doesnt support the inferences he wishes this
Court to draw.
For instance, the Petitioner believes that his self-described daughters testimony
that he never touched her is sufficient to establish that he had never engaged in sexual
relations with any underage girl. See Appendix E, p. 1. In short, he wants this Court to
assume that every pedophile is also an incestuous pedophile. The Petitioner presented no
evidence to support that claim, and it is far from self-evident.
In another instance, the Petitioner states on the first page of Appendix E that
every blog post [Mr. Walker] wrote about Appellant [sic] portrayed Appellant [sic] in a
negative light. First, this is trivially wrong,14 but the inference the Petitioner wants to
drawthat Mr. Walker had an agenda to portray him falselyis not supported by the
testimony. Portraying a person negatively and portraying him or her falsely are two
different concepts. Would one expect most people to write a positive portrayal of Osama
bin Laden or Charles Manson? Would one presume that a piece discussing their activities
that didnt put them in a positive light was false?
The Petitioner is a convicted terrorist. Kimberlin v. White, 7 F. 3d 527, 528-29 (6th

Mr. Walker actually said I cant think of the last time I said something that would tend
to put you in a good light. See Record Extract D, p. 81.

Cir. 1993) (detailing the Petitioners bombing campaign in Speedway, Indiana, which
cost a man his life). He has done some pretty awful things in his life. The Petitioner
seems to think that it is self-evident that (1) he has done some really good things and (2)
that those alleged good acts would be considered newsworthy by every fair-minded
person. Therefore, he believes (3) that if a person who discusses newsworthy events
doesnt write positive things about him, this Court should assume that that reporter is not
interested in the truth. However, nothing he presented to the jury supports any part of that
three-part syllogism.
Likewise, on page two of Appendix E where the Petitioner discusses the dislike
the Respondents have for the Petitioner, the Petitioner wants this Court to simply assume
that their dislike is groundless.15 However, since Maryland courts do not presume falsity,
a jury cannot be allowed to infer that simply because someone has a negative opinion
about a person that they arent telling the truth about that person. Indeed, the usual
inference is that most people rely on evidence before drawing negative conclusions about
someone. Thus, most ordinary people assume that if one person says negative things
about another person, there is some basis for that belief.
Next, the Petitioner seems to think that because Mr. Walker filed one federal suit,
one state suit, and one peace order petition that this proves that they were false and
malicious. Appendix E, p. 2. First, the only testimony about the federal suit was that it


It is curious that the Petitioner seems to believe that it is ordinary human nature that if
one does not like a person that 1) there is no just cause for that disdain and 2) that one
will do anything, however dishonest, unethical or immoral, to harm the person he or she
dislikes. Mr. Walker disputes that this is the way normal people think or behave.

was dismissed as moot. Record Extract D, pp. 85-86. Second, when the Petitioner
attempted to present evidence about the reasoning behind the dismissal of the state suit,
the question was objected to, and the objection was sustained. Id. p. 85. There was no
attempt to determine why the Peace Order was denied, and this Court well knows that a
court might refuse to grant relief for any number of reasons other than that it believes that
a petitioner is dishonest or malicious.
Likewise, on page two of Appendix E, the Petitioner asks this Court to hold that a
jury could infer that Mr. Hoge made false charges simply because the charges were
dismissed on a plea of nolle prosequi. Judge Johnson correctly noted that an entry of
nolle prosequi is irrelevant to the ultimate substantive merit of the charges.
On page three of Appendix E, the Petitioner takes Respondent McCains
testimony out of context where he discusses jokingly about being nasty and noting the
axiom that sex sells, and tries to spin that into proof Mr. McCain falsely creates sex
scandals. First, the Petitioner again assumes that being negative toward anotherbeing
nastyautomatically involves falsehoods. However, nothing Mr. McCain said
suggests that he was anything but honest. Further, McCains negative opinion of a fellow
journalist is irrelevant as is his negative opinion of the Petitioners self-described
daughters singing abilitiesand again, the Petitioner seems to want this Court to
presume the Respondents are wrong on these points, when there is no presumption of
Finally, on page three of Appendix E, the Petitioner insensitively writes that
because his wife was seemingly on good terms with the Petitioner, that this meant the

jury could infer that any charges that were filed were false. However, any person who has
worked with abused women, as Mr. Walker has,16 knows the sad fact that a victim of
abuse often returns to his or her abuser. See, e.g., State v. Hill, 287 S.C. 398, 339 S.E.2d
121, 122 (S.C. 1985) (discussing how a battered woman often repeatedly returns to her
abuser); and Lopez-Umanzor v. Gonzales, 405 F.3d 1049 (9th Cir. 2005) (immigration
court erred by finding it implausible that a victim of abuse would return to her abuser).
Further, a reasonable juror would be more likely to ask why wasnt Mrs. Kimberlin here
to testify?suggesting she was reluctant to disavow her prior words (given under oath).
Accordingly, in each instance the Petitioner has failed to show that there was any
fairly deducible inference[,] Spengler, 163 Md. App. at 235, supporting the conclusion
that the Respondents wrote anything false about the Petitioner. Indeed, he very often asks
this Court to infer what it cannot presumethe falsity of the Respondents statements,
while ignoring direct evidence they were telling the truth. Thus, Judge Johnson was
correct when he said that [t]heres not one scintilla of evidence in this case that the
statements that were made by these individuals were false (E.D. 266) and the Petitioner
has presented no justification for the grant of certiorari.
Maryland Rule 8-303(b)(1) states in relevant part that [t]he petition shall present
accurately, briefly, and clearly whatever is essential to a ready and adequate

Although not mentioned in testimony below, Mr. Walker had spent some time working
with abused persons and has witnessed firsthand the sad reality that victims of abuse
often return to their abusers.

understanding of the points requiring consideration. Further, subsection (b)(1)(I)

requires that the Petition contain the essential facts. Together these sections impose a
duty on the Petitioner to truthfully describe what happened below. Meanwhile, as
previously noted, subsection (c) states that [f]ailure to comply with section (b) of this
Rule is a sufficient reason for denying the petition.
Therefore, if a petitioner is caught misstating the truth regarding the facts that
were shown below, this Court can deny the petition for that reason alone, and,
unfortunately, that is precisely what has happened here. In the course of the Petition, the
Petitioner has made over fourteen misstatements of facteither outright falsehoods or
claims that were not supported by the evidenceapart from those already noted in this
Opposition. Those additional misstatements are as follows (the Petitioners statements in

After a full presentation of the evidence (Petition, p. 1). Only the

Petitioner/Plaintiff had rested when a motion for judgment was granted. The
Respondents/Defendants had never presented their casebecause they didnt have to.

On the day of the trial, the judge denied Appellants [sic] motion to

find Rule 9-104 unconstitutional. (Petition, p. 1) The falsehood here is that the
Petitioner is pretending that there was a single day of the trial. The decision to allow the
Petitioner to testify was made on the first day. Testimony began on the second.

Appellant [sic] Brett Kimberlin is the director of a Maryland based

[sic] non-profit that works to promote pluralism, tolerance and progressive values.
Because of Appellants work, in 2011, he became the focus of a defamation

campaign by a group of conservative extremists. (Petition, p. 3) There is no evidence

presented below supporting a single word of that claim.

Aaron Walker, the publisher of the anti-Muslim Everyone Draw

Mohammed blog (Petition, p. 3) There is no evidence that Mr. Walker published an

anti-Muslim website, and he didnt.

[Mr. Walker] assaulted Appellant [sic].... Appellant [sic] was treated

for the assault at Suburban Hospital for a contusion to the eye and back pain.
(Petition, p. 3) The only evidence on the question of whether Mr. Walker assaulted the
Petitioner is Mr. Walkers testimony and his testimony showed that 1) Mr. Walker only
acted in self-defense from this violent felon and 2) did not harm the Petitioner in doing
so. E.D. 58-59 and 67-73

In Appendix C (which is unpaginated), the Petitioner wholly misrepresents

the state of the evidence presented to the circuit court. Specifically:


There is no evidence that Mr. Walker made the following statements

attributed to him:

August 28, 2013 comments in the Bethesda Gazette.


August 1, 2013: if you just believe in helping get her kids

away from her pedophile husband in reference to the Petitioner.


July 31, 2013: Pedophile Brett Kimberlin Violates a

Domestic Violence Protective Order.


August 10, 2013: that LG is a paid troll of pedophile Brett



July 30, 2013: next hearing date will be in circuit court,

where PedoBrett tends to lose.


July 29, 2013: What does #BrettKimberlin, who tried to

have sex with a 12-year old [sic], deserve?17


The only statements attributed to Mr. Hoge that the Petitioner

admitted into evidence that were made by Mr. Hoge is the statement The Dread Pedo
Brett Kimberlin and the fact that Mr. Hoge has a feature on his website called The
Team Kimberlin Post of the Day without any evidence about its content. Every other
statement attributed to Mr. Hoge is without evidentiary support in the court below.

In relation to Mr. McCain, neither of the statements attributed to him

were admitted into evidence.


In relationship to Mr. Akbar, the only statement that the Petitioner

manage to admit into evidence was the following: So, weve uncovered
#BrettKimberlins big secret: hes a pedophile with other pedophiles around his
These misstatements of the factover fourteen of themare unlikely to have
been an innocent mistake. Rather, they appear to be part of a concerted effort to obtain
certiorari by a fraud on this Court. Indeed, attached as Exhibit B is a copy of the instant


Although the Plaintiff offered no evidence that Mr. Walker made such a statement, in
the interest of full disclosure, Mr. Walker did testify that the Petitioners wife, Tetyana
Kimberlin, filed criminal charges based on the Petitioners seduction of her in Maryland
when she was fifteen years old (and the Petitioner was in his forties), and that the same
charges accused the Petitioner of attempting to seduce her then-twelve-year-old cousin.
E.D. 105-6.

Petition, as well as Appendices C and E to that Petition, with every false or unsupported
factual claim blocked out, so this Court can appreciate the full breadth of the attempted
deception. The words Swiss cheese come to mind.
Further, this is not the first time this Petitioner had filed a misleading petition for
certiorari before this Court. The same Petitioner had previously filed (among other
lawsuits) two Peace Orders against Mr. Walker, which were dismissed on de novo
appeal. The instant Petitioner filed a petition for a writ of certiorari after he lost one of
those Peace Orders, Kimberlin v. Walker, Petition #148 (September Term, 2012). In that
petition, the instant Petitioner falsely claimed that Judge Johnson18 1) had refused to
allow the Petitioner to call Mr. Walker as a witness and 2) had barred the instant
Petitioner from submitting evidence of alleged harassment. After Mr. Walker pointed out
these falsehoods in that case, that petition for a writ of certiorari was deniedas the
instant Petition should be.
In summary, it is neither desirable nor in the public interest for this Court to grant
this Petition. The Petitioner is procedurally barred from challenging MD CODE Cts. &
Jud. Proc. 9-104. Likewise, there is no need to reaffirm what this Court has already
ruledthat in all cases involving defamation, the plaintiff carries the burden of proving
falsity. Further, the Court of Special Appeals did not rule that only his testimony could
have created an issue for the jury and the Petitioner has presented no reason why this

This is the same Judge Eric Johnson that presided in this case. Since then, Judge
Johnson has retired as appears to be required under Maryland Law for judges who have
reached the age of seventy.

Court should revisit the evidentiary issues already addressed by two Maryland courts.
Finally, to grant certiorari to this Petitioner would reward him for an attempted fraud on
this Court and introduce a needless element of chaos before this tribunal. For all of these
reasons, the Petition should be denied.

Friday, April 29, 2016

Respectfully submitted,

Aaron J. Walker, Esq.

(Va Bar# 48882)
P.O. Box 3075
Manassas, Virginia 20108
Phone: (703) 216-0455
(no fax)


This brief contains 6,725 words, excluding the parts of the brief exempted
from the word count by Rule 8-503. However, there does not appear to be any limitation
on the length of answers to petitions for writ of certiorari.
This brief complies with the font, spacing, and type size requirements
stated in Rule 8-112. Specifically this document was typed in Times New Roman, 13point font.


I certify that on Thursday, April 14, 2016, I served copies of this document on the
Mr. Kimberlin, at 8100 Beech Tree Road, Bethesda, Maryland 20817, via U. S. Mail, and
on the remaining respondents by email, by their consent.


The Petitioners Motion to Reconsider and Suggestion for Reconsideration En Banc
filed in the Court of Special Appeals

Exhibit A has been redacted from this Scribd version because it is available elsewhere.

The cover page, body, and Appendices C and D of the petition for writ of certiorari, with
every factual assertion unsupported by the record blocked out




Petition # 93,
September Term, 2016




Upon consideration of the Mr. Kimberlins petition for writ of certiorari,
Respondent Walkers opposition thereto, and any other filing in support or opposition
thereto, it is this

day of

, 201

, hereby

ORDERED the petition for writ of certiorari is hereby DENIED.

Judges, Court of Appeals