Kimberlin v. Walker et. al Transcript 2.0 (8-11)

8/11/2019 Kimberlin v. Walker et. al Transcript 2.0 (8-11)

http://slidepdf.com/reader/full/kimberlin-v-walker-et-al-transcript-20-8-11 1/69

DEPOSITION SERVICES, INC.12321 Middlebrook Road, Suite 210

Germantown, Maryland 20874(301) 881-3344

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

------------------------------X

:BRETT KIMBERLIN, :

:Plaintiff, :

:v. : Civil No. 380966

: AARON WALKER, ET AL, :

:Defendants. :

:

------------------------------X

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. :

:

------------------------------X

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 KIMBERLINPro Se8100 Beech Tree RoadBethesda, Maryland 20817

FOR THE DEFENDANTS:

PATRICK OSTRONIC, Esq.932 Hungerford DriveSuite 28ARockville, 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, you’re at the wrong table.

MR. KIMBERLIN: Okay.

THE COURT: Let’s get started the right way.

MR. OSTRONIC: Let’s 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 haven’t 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 you’re telling me that this, that thi



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shows on the docket Brett Kimberlin v. Aaron Walker, malicious

prosecution. It’s a jury trial set for three days. And now

you’re telling me there are four cases?

MR. OSTRONIC: Your Honor, there were originally fiv

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 what’s 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 you’re telling me that there’s n

potential of any conflict as between the defendants?

MR. OSTRONIC: I don’t see it right now.

THE COURT: In other words, there won’t be any of

this --

MR. OSTRONIC: No, Your Honor.

THE COURT: -- for the record, pointing at each

other?

MR. OSTRONIC: No, I don’t 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

don’t have exactly --

MR. OSTRONIC: It’s 9-1, Your Honor, it’s 9-104.

Perjurers cannot come testify.

THE COURT: 9-104?

MR. OSTRONIC: I’m sorry, perjurers cannot testify -

THE COURT: There are a lot of 9-104s. Where?

MR. OSTRONIC: I’m sorry, CJ, Courts and Judicial

Proceedings.

THE COURT: Oh, Courts and Judicial proceedings.

MR. OSTRONIC: I’m sorry, Your Honor.

THE COURT: That’s the section that provides that a

person who has been convicted of perjury may not testify.


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 there’s a victim.



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THE COURT: Well, hold on a second. You may not

know this, and this comment isn’t 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. You’re

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. I’m going to have to have some compellin

reason to make that --

MR. KIMBERLIN: I put those in the motion. I’m sorry

that they didn’t get it to you this morning.

THE COURT: Well, this case came up late Friday

evening. And so that’s of no moment. We can still deal with

the issues that are involved.

MR. KIMBERLIN: Well, first of all, they’re saying

that I can’t testify in this case because --

THE COURT: No, they’re not saying it. The statute

says -- you were convicted of perjury, correct?

MR. KIMBERLIN: I think that’s their burden of proof

I think if they have a certified copy then they should present

it. I don’t 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 it’s their burden. If they want

to say that I’ve 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 that’s why it’s

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 doesn’t prohibit calling witnesses.

MR. KIMBERLIN: Well, it prohibits me calling myself

And I’m a pro se litigant. You know?

THE COURT: It doesn’t prohibit you calling other

witnesses.

MR. KIMBERLIN: I understand that. But what I’m

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, there’s

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 that’s being done right now.

MR. KIMBERLIN: Okay. Well --

THE COURT: So you’re asking this Court to ignore th

allegation that a person is convicted of perjury and to allow

the testimony when the statute specifically prohibits it? It’

not about them, it’s what you’re asking this Court to do.

MR. KIMBERLIN: No, I’m 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 th

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 that’s an issue that

the Court would have to reach.

MR. KIMBERLIN: Okay, so let’s 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. An

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 can’t testify.

And that’s why there’s 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.

There’s 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

you’re representing yourself, and it’s 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 you’re standing

before the Court arguing now. Don’t send me on a hunting trip

to find things that you’re citing. Just give me the cite.

MR. KIMBERLIN: Let me see.

THE COURT: You’re going to get time to do that.


THE COURT: But you can take your papers out and get

ready for trial. We don’t want every time an issue comes up,

if it’s 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 it’s 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 argumen

that the Courts and Judicial Proceedings Article --

MR. OSTRONIC: Is unconstitutional?

THE COURT: -- is unconstitutional. That’s 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. I’ll 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 wa

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 parameter

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. It’s surely

constitutional. And I’ll even point out a little further, You

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 didn’t 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 can’t talk at the same time.

MR. OSTRONIC: I’m 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 prohibit

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 I’ve been convicted of perjury?

I’ve testified in front of you before, Judge. You let me



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testify. I’ve testified in front of Judge Burrell. She let m

testify. I’ve 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 o

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: I’m sorry, dyslexic today. Judge

Algeo.

THE COURT: Well, was there a motion made to prohibit

you from testifying because you’ve been convicted of perjury?

MR. KIMBERLIN: Yes. They have stated to every

single Judge in this case over and over and over that I can’t

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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forgot to. But everybody assumed it. My probation officer at

the time told me you’re going to have this conviction expunged

when you’re 21. Everybody knew it. And then what happens?

It’s 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. I’m so sorry, Mr. Kimberlin, but I can’t apply that

retroactively because it’s 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 didn’t get

my law degree. But I did study a lot.

THE COURT: Well, there’s 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 there’s a

rule that I don’t 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, what’s the cite of that case?

MR. KIMBERLIN: It’s 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 year

old. And I think in that case, I’m 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 allowin

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 I’m

referring to defense counsel now --


THE COURT: Right. Now, the counts that are left,

and I’m 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 that’s 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 al

the complaints.

THE COURT: Okay. And they are?



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MR. KIMBERLIN: It’s 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, that’s what this is all

about, correct?

MR. KIMBERLIN: No, it’s not about my past history a

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, you’re arguing your case,

and you’ll get a chance to do that. But --

MR. KIMBERLIN: They called me a murderer. I’ve

never been involved with murder. I’ve never done a murder.



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They’ve called me a terrorist. I’m not a terrorist.

THE COURT: Okay, let me stop you there. How are yo

going to, they must plan, there’s something that has been said

about you, some conduct, all right, that you were allegedly

involved in, that’s what they’re talking about, correct?

MR. KIMBERLIN: No, they seem to have made out of

whole cloth, they say that I’m a pedophile. Every day they say

I’m a pedophile. Every day. And they post pictures of

Me.

THE COURT: But that’s 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 don’t know. I don’t know.

But a terrorist --

THE COURT: Well, you must know what they’re accusing

you of or you can’t defend it.

MR. KIMBERLIN: Oh, no, I can defend it.

THE COURT: Okay, what is it that they allege you di

that would be terrorist activity?

MR. KIMBERLIN: I can’t speak for them, but I can

assume that what they’re 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 I’m a terrorist.

THE COURT: Okay.

MR. KIMBERLIN: But that is not terrorism. That is

not terrorist. Okay?

THE COURT: That’s an argument.

MR. KIMBERLIN: That’s an argument for the jury.

THE COURT: Now, what I’m trying to get you to focus

in on, how are you going to allege that what they’re saying,

i.e., that you’re a terrorist, is not accurate unless you talk

about what it is that they’re saying? You can’t say to the

jury, they’re saying something about me and the something that

they’re saying is not true.


THE COURT: So in other words, the jury would have t

know what it is that’s said that’s not accurate. So as soon a

those words are uttered, that’s when the problem begins. You

don’t 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, I’ve 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 I’m 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 don’t 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, there’s an

arrest. So is that what they said?

MR. KIMBERLIN: They say that I’m a pedophile.

THE COURT: But my question is, do they say that you

were arrested or charged with pedophilia? It’s not a hard

question.

MR. KIMBERLIN: Well, you know, it kind of is just

because they have created this mean that’s so bizarre involving

my wife.



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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 you’re not, that’s one thing.

MR. KIMBERLIN: Right.

THE COURT: If they say you were arrested for

something, that’s clearly something that can be disproved. I

mean, whether you were arrested or not. So this isn’t

splitting hairs, here.

MR. KIMBERLIN: No, I know.

THE COURT: What are they alleging? Are they

alleging that you’re a pedophile or are they alleging that you

were arrested for pedophilia?

MR. KIMBERLIN: They’re alleging that I am a

pedophile. They’re alleging that I’m a murderer, that I’m a

killer. They’re alleging that I got them fired from their

jobs, that I forced them to flee their homes. These are all

false. They’ve 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, we’re not going to hear thousands

of tweets. This jury will be asleep at the end.

MR. KIMBERLIN: Well, I know. I certainly don’t



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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: You’re 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 you’re able to prove that whatever i

is they did it, that the individuals that you’re claiming are

responsible actually did it?

MR. KIMBERLIN: Yes. I’ve got that, I mean, they’ve

signed --

THE COURT: And what about damages?

MR. KIMBERLIN: Damages? Damages are easy.

THE COURT: Tell that to a jury.

MR. KIMBERLIN: Yes, well, I’m 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.




pm 24

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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: It’s not a hard question. You want to

prevent them from doing that?

MR. KIMBERLIN: No.

THE COURT: You don’t?

MR. KIMBERLIN: I don’t want that. My conviction fo

detonating an explosive is not terrorism. It’s not a

terrorist.

THE COURT: Hold on a second. That’s argument.

That’s for whoever the alleged fact finder is to determine. My

question is, you want to prevent them from getting into that.

In other words, you’re going to say they say I’m a terrorist

and I’m not a terrorist. You want to stop them from saying we

said he’s a terrorist because he did this, this and this. Is

that what you want to do?

MR. KIMBERLIN: I’m 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, I’m saying --

THE COURT: You want to say they say I’m a terrorist

and --

MR. KIMBERLIN: If I testify, the rule says they

cannot impeach me with a conviction of more than 15 years old.

That’s what the rule says. And you haven’t ruled yet whether

can testify.

THE COURT: Well, hold on a second. Let’s go back t

my question. My question is you sue them and you say one of

the things that they claim is that you’re 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, that’s not right.

THE COURT: So in other words, you’re not going to b

objecting to them saying this man was detonating explosive

devices and we think that’s terrorism?

MR. KIMBERLIN: I’m not going to object to that.

THE COURT: I mean, terrorism is not a specific,

well, it might be a Federal charge, but there’s no charge.

Terrorism is I suppose an adjective describing certain kinds o

conduct.


THE COURT: So would it not be a factual question of

whether an individual who was detonating explosive devices,

whether that’s terrorism or not, is something to be argued?



pm 26

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MR. KIMBERLIN: That’s something that should be

argued, and I think the jury should have that.

THE COURT: Okay.

MR. KIMBERLIN: And I’m agreeable to that. But, you

know, they’re arguing for a rule over here about perjury.

There’s another rule that says you can’t do this if it’s more

than 15 years old. And I may not even testify. I may not. A

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 don’t have to

give the details of her testimony, obviously. I don’t want yo

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, you’re going to show thi

jury that these certain things were said about you?


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, I’d 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 you’re called a

terrorist and you say you’re not, and they put on evidence,

well, he says he’s not a terrorist, but he was going around

blowing up chicken coops or whatever, I don’t know. And then

wouldn’t 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 wasn’t even born then. She wasn’t

even born. So what is she a witness to?

MR. KIMBERLIN: But she’s 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: That’s what they’ve 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, you’re not

arguing the case, we’re just talking about these motions.

MR. KIMBERLIN: -- because of these false allegation

of pedophilia. They have tried to destroy her musical career.

She’s a child prodigy. I’m just letting you know. She’s

very, very capable.

THE COURT: Let’s just limit this to what’s necessary

for purposes of these motions. So that’s 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, i

it not?

MR. KIMBERLIN: No, it’s not.

THE COURT: Okay.

MR. KIMBERLIN: You know.

THE COURT: Okay. Well, let me hear from the

defense. You don’t need to say any more about the perjury

issue. I’ll 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 can’t use convictions over 15 year

to impeach a witness. That’s all it says. That’s what



pm 29

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impeachment is all about. It’s not about bringing facts to

light about the plaintiff or facts to light about the

defendant. It’s strictly on impeachment purposes. And if Mr.

Kimberlin does not testify, then none of these facts would be

an impeachment of the witness. And we’d certainly have no

problem, I mean, 609 is the rule. Anybody he might call up

here, if there was a conviction over 15 years, you’re right,

I’m not going to use that to impeach that witness. That’s all

609 calls for.

THE COURT: What the Court is struggling with here

is this. It’s 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 I’m a pedophile?

MR. KIMBERLIN: Yes.

THE COURT: You’ve now, that jury has heard that

allegation. And they have to give some answer to that

question, correct?


THE COURT: But it’s almost as though what you’re

trying to keep from the jury needs to be heard for purposes of

deciding the case. Because you can’t come in and just say

they’re saying bad things about me that are not true. Well,

what things? I mean, if the jury doesn’t know what it is



pm 30

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that’s alleged, then how can they decide this case?

MR. KIMBERLIN: Your Honor, I want the jury to have

complete picture of this whole case. I’m not trying to hide

anything from the jury.

THE COURT: And the only way they don’t 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 that’s what you’re claiming. So you can’t say they’re

claiming this, they’re 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 didn’t murder anybody and I

didn’t commit any pedophilia.

THE COURT: Well, I’m not talking about murder. I’m

just talking about the explosives.

MR. KIMBERLIN: Well, as I present my case, maybe I

won’t even talk about the terrorism. Maybe I’ll leave that

alone --

THE COURT: Well, that’s up to you.

MR. KIMBERLIN: -- based on your esteemed judgment.

But --

MR. OSTRONIC: Your Honor, if I can just throw in on

thing here?

THE COURT: Sure.



pm 31

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MR. OSTRONIC: On the question of pedophilia, if tha

matter is introduced, Your Honor, you and him were dancing

around the question of being arrested or --

THE COURT: Well, he’s dancing around it.

MR. OSTRONIC: That’s what I’m 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. That’s 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 don’t want to bring it into

evidence, Your Honor. But if he brings up and says, if he ask

any of my clients about charging him with pedophilia, it’s out

there, Your Honor.

THE COURT: There it is.

MR. OSTRONIC: There it is. And he’s brought it in



pm 32

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there. And what I don’t want to happen here, Your Honor, is t

relive this. If he’s going to bring his daughter in here, and

I’ll 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 wouldn’t want a 15 year old to

have to be subjected to that.

MR. KIMBERLIN: Your Honor, that’s what this case

boils down to. My wife has some mental issues. I’ve been

dealing with that all my life.

THE COURT: Well, not all your life, just since

you’ve 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. That’s 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 he’s testifying.



pm 33

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MR. KIMBERLIN: Okay. No, I’m 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

you’re doing is inappropriate --

MR. OSTRONIC: Now he’s talking out of court.

THE COURT: You can’t do that.

MR. KIMBERLIN: But she said I either lock you up fo

an evaluation, or you get help.

MR. OSTRONIC: Again, Your Honor, there’s nothing on

the record --

MR. KIMBERLIN: I’m just trying to give you --

THE COURT: That’s not really --

MR. KIMBERLIN: So what they do, she comes out of th

courtroom, they contact her shortly thereafter. And what do

they do? They say we know how you can keep from going back fo

a mental evaluation.

THE COURT: You won’t be able to testify to any of

that. Even if you didn’t have this perjury issue, you wouldn’

be able to testify to that.

MR. KIMBERLIN: No, they’ll testify to it. I’ll 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, you’re 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 it’s

Monday. It’s still Monday, right?


MR. KIMBERLIN: We’ve got a two day trial.

THE COURT: Pardon me?

MR. KIMBERLIN: There’s a two day trial.

THE COURT: And also, we’re not the only case going

on. And so if we don’t get the jurors, then they’ll go

elsewhere and it could be longer than that. Are there other

motions?

MR. OSTRONIC: Yes, Your Honor, I’d 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 that’s part of his order at 183 and 194, docket numbers 18

and 194, Judge McCann’s 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 Court’s order will not be admitted.

MR. OSTRONIC: Okay, Your Honor.

THE COURT: But I can’t rule on that until the issue



pm 36

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comes up. If there’s something that comes up that should have

been turned over or should have been answered and it wasn’t

answered, then it will not be admitted.

MR. OSTRONIC: You want to wait specifically until

it’s tried in the case itself or, because I think we can --

THE COURT: Yes. Why, you think it’s that simple?

MR. OSTRONIC: I do think it’s 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. H

named nobody, which means that any witness that he might call

would presumably have some information that supports one of hi

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 ca

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



pm 37

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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: What’s the number of that?

MR. OSTRONIC: That’s 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. That’s 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 McCann’s order, Judge

McCann said that unless plaintiff answers the questions about

expert witnesses, he’ll be precluded from calling any expert

witnesses.

THE COURT: What’s the number of that? Was that a

specific interrogatory?

MR. OSTRONIC: That’s 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



pm 38

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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 didn’t in fact have a

lawyer and paid attorney’s fees. That’s 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 can’t testify, Your Honor, we’d

be wasting the jury’s 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. That’s 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.

That’s where he’s 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 plaintiff’s 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 that’s said. I want him to finish the motions.

MR. OSTRONIC: Then I have some specific

interrogatory answers in here, Your Honor, but from what you’ve

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 t

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



pm 41

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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 didn’t think that I had to list again witnesses

that I’ve already listed and that they signed off on. It

doesn’t 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 they’ve turned over to me

One. One single e-mail. When I filed a motion to compel thei

compliance with discovery, they objected and it was denied.

I’ve gotten nothing, zero, except for one small, tiny e-mail.

So what they’re trying to do -- and this case has

been like this from the get-go. You know? We’ve had hearing

after hearing before a dozen judges or half a dozen judges,

anyway. And it’s all been technicalities. Let’s knock him ou

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. I’m a pro se litigant. You know?

He’s trying to say that I have to comply with every tiny little

thing. You know? This is a case. It’s a big case. There’s

lot of stuff here. You know? The Supreme Court, the Maryland

appellate courts have all said you know, you can’t hold a pro

se litigant to these stringent things that --

THE COURT: Well, you’re going to need a case to cit



pm 42

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that says that.

MR. KIMBERLIN: Out of the Supreme Court?

THE COURT: Any court except maybe the 9th Circuit.

You’re going to need a case that says that. You just can’t

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 it’s a Supreme Court case. And I believe it talks

about pro se litigants.

THE COURT: Kerner? How do you spell Kerner?

MR. KIMBERLIN: That’s something that’s 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 don’t have two sets of rules, one rule book for pro

se litigants and one rule book for lawyers. That would be an

absolute disaster. There’s no requirement that a person have

lawyer. Speaking of the constitution, one has the right to

represent oneself if one chooses to do so. But you’re 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 we’re not going to ge

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, I’m not asking for any

special treatment, but I’m 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 that’s

the witnesses. You know? Why should I have to come back in a

interrogatory and repeat that what they already know? I didn’t

just decide that I’m not going to have these witnesses. I jus

submitted this in June. You know? And a couple of weeks

later, they’re saying, oh, you didn’t say the same thing you

said in the pre-trial statement.

THE COURT: Well, the interrogatories is a little

more detailed than that. There’s a purpose for these rules

that has been time tested. That’s 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 they’re 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

shouldn’t be allowed to put on a case because I have no

evidence because I didn’t state it in that particular

interrogatory. I stated it in another interrogatory. I stated

it in another interrogatory. I said here’s what I’ve got,

right here, 3,000 pages. That’s in another interrogatory.

Because I didn’t state it in the first interrogatory but I

stated it in the third interrogatory?

I’m basing this case on their statements, their blog

posts, their tweets, their radio programs. That’s what this

case is based on. They have all that. It’s right here.

THE COURT: And you understand that when you sue

somebody you have to be very specific with what you’re alleging

each particular individual did, not they, and you have to be

able to prove that in a manner that is consistent with the



pm 46

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writing.

MR. OSTRONIC: Right.

THE COURT: That’s just a rule. I didn’t just make

that up. That’s 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 don’t discriminate. They apply

the same to everyone. But, you know, I don’t like trials in

limine because some of these issues look different when they

come up in trial than they do when they’re being argued in a

motion in limine.

MR. OSTRONIC: I appreciate that --

THE COURT: It’s very difficult to do that. For a

long time, Maryland didn’t 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. There’s 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 doesn’t make much sense.

And secondly, as far as damages, as the 4th Circuit

said and the Maryland Appeal Courts have said --

THE COURT: You’re doing pretty good with all these



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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 doesn’t think that w

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 yo

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 that’s the end.


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 you’re 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

court’s rulings and not advice. I don’t want to sound like I’m

giving legal advice. All right. Anything else?

MR. KIMBERLIN: No.



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MR. OSTRONIC: No, Your Honor. You understand now

what we’ll 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 there’s counsel on

the other side who’s done the job as counsel apparently has in

this case, the rules apply to them as well. And so you need t

understand that.

Otherwise, the court system completely breaks down.

If every day somebody comes into court and says look, I’m not

represented and maybe this evidence shouldn’t be admissible,

but I’m not a lawyer, so this hearsay evidence should come in.

Oh, no, no, no. It doesn’t 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 can’t prove it. So, you don’t 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, I’m going to stay away from football analogies. I’l



pm 50

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just stop there. But we play by the rules here.

In the district court, I know you’ve 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 couldn’t even get two minutes of a lawyer’s

time for a $17 lawsuit. And so the district court doesn’t

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, there’s no provision fo

us doing that and we don’t relax the rules.

Now, I know sometimes judges might stretch a little

and give a pro se litigant some consideration that the rules

don’t provide for. But in a serious case like this where the

outcome of the case is extremely impactful on both sides, don’t

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: We’ll locate that. And did you submit

voir dire or --

MR. KIMBERLIN: It was a joint statement.



pm 51

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MR. OSTRONIC: It was a joint statement.

THE COURT: Okay, that’s fine. All right, we’ll tak

a break. We’ll pick the jury. And if there’s anything

preliminary after that, it’s easier to get the jury picked.

That’s done. And then other things we can deal with. I’ll

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 an

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, they’ve got to come in. So I haven’t

seen them or heard from them since. I haven’t checked my e-

mail.

THE COURT: Well, we’ll deal with that. If the

witness is under subpoena and the witness is not here, we’ll

deal with that issue.

MR. KIMBERLIN: Okay. All right. Thank you.

THE COURT: All right. We’ll take a recess and we’l

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

bailiff’s instructions. Follow the bailiff’s instructions.

(Bench conference follows:)

THE COURT: I want to make sure that we don’t 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, that’s the gist of the case.



pm 53

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THE COURT: Do you agree with that?

MR. OSTRONIC: Well, that’s what he’s alleging,

defamation and false light.

THE COURT: That’s what’s in here.

MR. OSTRONIC: Defamation and false light, yes.

(Bench conference concluded.)

THE COURT: Good morning ladies and gentlemen of the

prospective jury panel. I’m 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,

ma’am?

JUROR NO. 22: 22.

THE COURT: And what’s 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, ma’am, what’s your number, please?

JUROR NO. 45: 45.

THE COURT: And your primary language?



pm 12

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front of jurors. Why? Because people don’t know what kind of

jury you’re on. And they shouldn’t be saying things that coul

potentially influence you. So that’s 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, it’s not your cologne. Is that

they see that badge, and oops, there’s a juror and they stop

talking about whatever it is they’re talking about, because

they don’t want to say anything that could potentially

influence a juror. So that’s 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 don’t know that we’ll get much more beyond

just opening statements today and you’ll be released and then

tomorrow we’ll hear the meat of the case, so to speak.

So please don’t leave the floor, because your break

isn’t 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 we’re 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 they’re

pretty hard to get. And so I don’t want to cancel it. I hope

he doesn’t put the pliers on me --

MR. KIMBERLIN: I hope you’re here tomorrow.

THE COURT: So we’re going to stop then. But I think

you’ll get this case in.

MR. OSTRONIC: I think so too, Your Honor. I would

say that if it’s all the same, I don’t 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 what’s said and not said. And I’m not

going to go beyond that. I’ll just -- I don’t want to create

issues that don’t exist.

MR. KIMBERLIN: Do we have a time limit?

THE COURT: Well, your time limit should be logical.

I mean, there’s a reason --

MR. KIMBERLIN: I mean, obviously you’ve got to

leave, but --

THE COURT: No, but there’s a reason why Madison

Avenue has a commercial on T.V. every 12 minutes. You talk to

people much longer than that and you’ve lost them. All an



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opening statement is what this case is about. It’s not --

remember, it’s not evidence. So they can’t consider it as

evidence.

MR. KIMBERLIN: I understand.

THE COURT: It’s just -- I always call it like a

preview to the movie about to come -- like a trailer. This is

what this case is about. That’s all. That’s 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

you’re going to tell them, what it is you’re 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, it’s 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: I’d 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, we’re just talking to them and then we just kind of



pm 12

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leave.

THE COURT: Here’s the problem. The length of this

trial -- we will finish tomorrow, but that’s 45 minutes from

now. You think if we give opening statement --

MR. OSTRONIC: It’s not a question of getting it in.

It’s just so that --

THE COURT: You rather for the continuity purposes?

MR. OSTRONIC: That’s the only reason I’m saying

that.

MR. KIMBERLIN: You know, these people are smart. I

think they’d remember what happened from day to day.

MR. OSTRONIC: Okay. To me, it’s just more a

stylistic -- but I’ll go with your way.

THE COURT: I think we’ll go ahead.

MR. OSTRONIC: Are we going to do the rulings now?

THE COURT: The rulings? Oh, yes, yes. Let’s see -

I don’t know. I’m going to step down for a minute. I’m going

to step back in about five minutes and I’ll make those rulings

with respect to the issues that are before us and then we’ll

open and then send them home. And in fairness to them, you

know, they’ve been sitting here all day. It’s kind of nice if

they know something about what the case is.


THE COURT: I say this for the record, I know you’re

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 wasn’t opened, if you read what I’m

telling you.

MR. KIMBERLIN: Of course.

THE COURT: And I know counsel you’re well aware of

that.

MR. OSTRONIC: I’m 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, we’ll 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 -- I’ll

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, it’s very important

because you’re bringing a claim alleging that certain

information based upon certain events in your past with respect

to the record is defamatory, and you don’t get to have it both



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ways. You can’t on one hand say they’re defaming me and

they’re doing it by bringing up something that’s 15 years old.

You don’t 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 shouldn’t be used for impeachment purposes unless I open

that door. That’s what I’m asking.

THE COURT: With respect to the 15-year-old

conviction? The one that’s over 15 years?

MR. KIMBERLIN: Yes, it’s 40 years. It’s 35, 40

years.

THE COURT: And that’s 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.


THE COURT: And so what you’re saying is that

something happened. It was a long time ago. They’re writing

about it. And it’s 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 there’s some very

good reasons why that rule exists with respect to criminal law



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I don’t know, I haven’t 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, there’s 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 I’ll 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 wasn’t any discretion availabl

to the Court, the statute would read shall not testify. And i

doesn’t. It says may. Not only that, all of the cases seem t

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 doesn’t apply. That’s what the

cases seem to say.

But in this case, I don’t 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

you’ll 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 doesn’t work that way.


THE COURT: And so I suppose that’s pretty clear.

You don’t have to testify, that’s up to you. Now, I don’t 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 individua

is asserting the fifth for can’t be mentioned, it can’t be

talked about, it can’t 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 there’s a presumption

that if he had answered the question, that it would not have

been favorable for him. So that’s something that you need to

understand with respect to --

MR. KIMBERLIN: I don’t think that’s 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 com

back to you on the issue?

THE COURT: Oh, absolutely. I’ll give each side a

fair opportunity to respond. If he cites some case that says

anything contrary to the motion that I granted, I’ll 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 can’t on the one hand say, yeah,

I did that but you can’t talk about it, and I’m 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 you’re attacking the credibility, you

could still bring it in on other grounds, which would still

have been open.

THE COURT: Well, we’ll 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, he’s not going to testify in five

minutes. That’s for sure. So you’ll have time to do that

after, when we stop.

MR. OSTRONIC: I understand that, Your Honor. But

we’re also talking about possible position.

THE COURT: Okay.


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: I’m okay with that.

THE COURT: Because I don’t want to have you compact

it to five minutes. That won’t work.

MR. OSTRONIC: Perfect, Your Honor.

MR. KIMBERLIN: That’s great.

THE COURT: In light of our conversation at the benc

regarding the timing issue. So you can have a seat. Mr.

Clerk, would you mind bringing the jury in? I’m 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, I’m not.

THE COURT: They have, so -- ladies and gentlemen,

when this case starts, if you are a witness in this case -- now

that doesn’t include parties. If you’re one of the people

being sued, you stay in the courtroom. But if you’re a witnes

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 won’t be helping the party that you’re testifying for.

MR. KIMBERLIN: Is that after opening statements?

(The jury entered the courtroom.)

THE COURT: Ladies and gentlemen, you don’t have to

take your seats, just come up to the well. Counsel will

remain, but I’m 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 she’s 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 juror

are present. We don’t do, you know, three or four or anything

like that. We’ll wait until everybody is here and then we’ll

bring you in. So if you could arrive at 9:00, we’ll be ready

to go. Thank you.

THE CLERK: If all jurors could just wait outside,

I’ll get you your parking passes and stuff.

THE COURT: Wait over by the elevators. He’ll 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 -- that’

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.


THE COURT: And you understand the purpose of the

rule?

MR. KIMBERLIN: Right, I understand.

THE COURT: So your witness’s 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 they’re testifying and they’re

finished and they’re not going to be recalled, then the witnes

can sit in the courtroom if they want to.

MR. KIMBERLIN: Great.

THE COURT: But if they do that, they’re subject to

being excluded from being recalled.

MR. KIMBERLIN: I understand.

THE COURT: And both sides must instruct your

witnesses that they can’t talk about the case among themselves

or with each other until it’s over and done with. Any special

equipment anybody needs?

MR. KIMBERLIN: I’ll probably be using a computer

tomorrow, but I can bring it, for audio.

THE COURT: If you’re going to use it -- if you need

the Court to provide anything, you need to go down to technica

services on the terrace level and I hate to tell you this, but

there’s a cost. They don’t just provide the equipment.

MR. KIMBERLIN: I’ll bring my own.

THE COURT: It’s 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 doesn’t 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: They’re 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,

that’s a wrong metaphor. Are there any issues laying out ther

that are going to come up that you can envision?

MR. KIMBERLIN: I don’t think so.

THE COURT: Sometimes we have to be very careful in

our selection of metaphors. I always call counsel to task whe

they tell me about black sheep in the family. I like black

sheep. All right.

MR. KIMBERLIN: Thank you.

THE COURT: Ladies and gentlemen, we’ll see you in

the morning. Now, word to the wise, my law clerk is out givin

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: That’s 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 we’ll start with you

all and then when we take a break, we’ll dispose of those -- a

violation of probation which probably isn’t going to go, and

then a reconsideration of a sentence, which is probably going

to be brief. And then we’ll do that on recess and we’ll start

with you.

We’ll hear opening and then after your opening, we’l

take a break. I’ll do those things. And then we’ll 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 I’ll 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. We’ll remain adjourned.

MR. OSTRONIC: Thank you, Your Honor.

THE BAILIFF: All rise.

THE CLERK: The Court stands in recess.

(The proceedings were concluded.)



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! 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 MussoTranscriber

Kimberlin v. Walker et. al Transcript 2.0 (8-11)

Documents

Transcript of Kimberlin v. Walker et. al Transcript 2.0 (8-11)