IN THE COURT OF SPECIAL APPEALS FOR MARYLAND 37a 4 SEPTEMBER TERM 2014/2015, Nos. . September Term 2014-#1553, 2099 September Term 2015-4365 BRETT KIMBERLIN, Appellant, v. AARON WALKER, ‘WILLIAM HOGE, ALI AKBAR, and ROBERT STACY MCCAIN, Defendants. r l ae oad Appeal from the Circuit Court of Montgomery County (Judge Erie Johnson, Presiding) r r BRIEF OF APPELLANT BRETT KIMBERLIN BRETT KIMBERLIN Lee iii 2 " :eo od od ed ed sd 2 | aa =) 2) ion) | a7 TABLE OF CONTENTS STATEMENT OF THE CASE QUESTIONS PRESENTED FOR REVIEW STATEMENT OF FACTS ARGUMENT L COURTS ARTICLE 9-104 IS UNCONSTITUTIONAL AND THE LOWER COURT’S FAILURE TO FIND IT UNCONSTITUTIONAL DEPRIVED APPELLANT OF DUE PROCESS, EQUAL PROTECTION, AND. MEANINGFUL ACCESS TO THE COURT 0. THE TRIAL JUDGE ERRED ON THE LAW AND THE FACTS WHEN RULING THAT APPELLANT DID NOT PROVE DEFAMATION AND FALSE LIGHT 1. THE TRIAL COURT INVADED THE PROVINCE OF THE. JURY AND FAILED TO FOLLOW MARYLAND LAW REGARDING DIRECTED VERDICTS IV. THE TRIAL COURT PREJUDICED APPELLANT BY DEPRIVING HIM OF THE RIGHT TO PUT ON EVIDENCE TO PROSECUTE HIS CASE V. JUDGE MCGANN PRETRIAL IMPROPERLY DISMISSED THREE CLAIMS ON APPELLEES” MOTION TO DISMISS CONCLUSION CERTIFICATE OF SERVICE 20 el ce cel 34 35uIaI0a7121074 a3 oe 8 es et sd cal rp i} l TABLE OF CITATIONS Cases American Stores v. Byrd, 181 A2d 333 (Md. 1962) Batson v. Shiflett, 325 Md. 684 (1992) Baufiled v. Safelite Glass Corp, 831 F. Supp. 713 (D. Minn. 1987) Bochan v. La Fontaine, 68 F. Supp. 2d 692 (D. ED Va. 1999) Brown v. Farkas, 511 NE 2d 1143 (Ill. 1986) Bouie v. Rugged Wearhouse, Inc., 2007 WL 430752 (D. Md. 2007) 26 24 ae ac 26 26 Carter v. Aramark Sports and Ent Services, Inc., 153 Md. App. 210 (2003) 26 Conner v. Scruggs, 821 So 2d 542 (LA App. 2002) Dorszynski v. United States, 418 U.S. 424 (1974) Faretta v. California, 422 U.S. 806 (1975) Farum v. Colbert, 293 A2d 279 (DC 1972) Geschwendt v. Yoe, 174 Md. 374, 381, 198 A. 720 651 (1938) Hanrahan v. Baltimore, 114 Md. 517, 535 (1911) Haskins v. Bayliss, 440 F.Supp.2d 455, 461 (D. Md. 2006) Hearst Corp. v. Hughes, 297 Md. 112, 125, (1983) Jordan v. State, 591 A.2d 875 (Md. 1991) Kilpa v. Board of Education, 54 Md. App. 644 (1983) Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181 (1963) Longebehn v. Schoenrock, 727 NW 2d 153 (Minn, CA, 2007) Mazeer v. Safeway, 398 F. Supp. 412 (D. Md. 2005) Miles v. Ramsey, 31 F. Supp. 2d 869 (D. Co. 1998) Myers v. State, 496 A.2d 312 (Md. 1985) Plitt v. Greenberg, 242 Md. 359 (1966) Pettitt v. Erie Insurance Exchange, 117 Md. App. 212 (1997) 26 . 21 26 eal eal 26 26 22 30 mal 25 29 27 21 31 19Pollitt v. Brush Moore Newspapers, 136 A2d 573 (MD 1957) Rock v. Arkansas, 483 U.S. 44 (1987) Rosen v. United States, 245 U.S. 467 (1918) Samuels v. Tschechtelin, 763 A.2d 209 (Md. 2000) Shaprio v. Massengill, 105 Md. App 743 (1995) Smack v. Jackson, 238 Md. 35, 37 (1965) Smith v, Bernfeld, 226 Md. 400 (1961) ‘Smith v. Danielezyk, 928 A2d 795(Md. 2007) ‘Wesko v. GEM Inc, 272 Md. 192 (1974) Washington v. Texas, 388 U.S. 14 (1967) Womack v. Eldridge, 215 Va. 338 (1974) Statutes and Rules and Other Authorities Md. Rule 9-104 Md. Rule 5-601 Md. Rule 5-609(b) Ma. Code 3-1503(b)(1) 18 U.S.C. 5005-26 18 U.S.C. 5010(b)(2) 2012 House Bill 926 2012 Senate Bill 673 Black’s Law Dictionary 5“ Ed, West 1970 26 21 22 26 | ae 26 34 eal 34 passim aa 23 23 21 21 27oe 8 8 oe od 8 a4 io] el P [ i a a. STATEMENT OF THE CASE Appellant Brett Kimberlin filed a complaint for damages against five individuals in Montgomery County Circuit Court, alleging defamation, false light, intentional infliction of emotional distress, abuse of process, conspiracy to abuse process, stalking, harassment and malicious prosecution. RE-A. Plaintiff withdrew the stalking and harassment claims because they did not allow any private cause of action. The court, in a pretrial proceeding, dismissed the abuse of process, conspiracy to abuse process, malicious prosecution and infliction of emotional distress claims. RE-B. Plaintiff proceeded to a jury trial against four defendants on the defamation and false light claims. (The fifth defendant confidentially settled the case in Appellant’s favor.) However, after a full presentation of the evidence, the trial court, Judge Eric Johnson presiding, directed a verdict on both counts. Appellant filed a motion for new trial but Judge Johnson had resigned and so the motion was ruled on by Judge Richard Jordan who ruled in essence that since he did not have the transcripts, he was denying the motion. RE-C He then issued a final order, and Appellant filed his third notice of appeal in the case. This Court consolidated all three of those appeals and ordered Appellant’s lead brief to be filed on July 31, 2015. QUESTIONS PRESENTED FOR REVIEW 1. WHETHER COURTS ARTICLE 9-104, WHICH PROHIBITS ANYONE CONVICTED OF PERJURY FROM TESTIFYING IN ANY MARYLAND COURT, IS UNCONSTITUTIONAL AS A VIOLATION OF THE FIRST AMENDMENT’S GUARANTEE TO MEANINGFUL ACCESS TO THE COURTS, THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE, AND THE FOURTEENTH AMENDMENT’S EQUAL PROTECTION, UNDER BOTH THE UNITED STATES AND MARYLAND CONSTITUTIONS, AND OTHER ARTICLES OF THE UNITED STATES AND MARYLAND CONSTITUTIONS.3a ou 4 om] r i r i 2. WHETHER THE CIRCUIT JUDGE ERRED IN HIS RULING FOR A DIRECTED VERDICT ON THE DEFAMATION AND FALSE LIGHT COUNTS. 3. WHETHER THE CIRCUIT COURT JUDGE ERRED IN NOT FOLLOWING THE LAW WITH REGARD TO HIS ORDERING A DIRECTED VERDICT, RATHER THAN ALLOWING THE JURY TO ISSUE A VERDICT. 4. WHETHER THE TRIAL JUDGE EXHIBITED PREJUDICAL CONDUCT IN THE CASE THAT DEPRIVED APPELLANT OF A FAIR TRIAL. 5. WHETHER THE CIRCUIT COURT ERRED IN DENYING PRETRIAL APPELLANT'S CLAIMS FOR ABUSE OF PROCESS, CONSPIRACY AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. STATEMENT OF FACTS Appellant Brett Kimberlin filed a complaint for damages against five individuals in Montgomery County Circuit Court, alleging defamation, false light, intentional infliction of emotional distress, abuse of process, conspiracy to abuse process, stalking, harassment and malicious prosecution. RE-A. Plaintiff withdrew the stalking and harassment claims because they did not allow any private cause of action. The court, in a pretrial proceeding, dismissed the abuse of process, conspiracy to abuse process, malicious prosecution and infliction of emotional distress claims. RE-B. Plaintiff proceeded to a jury trial against four defendants on the defamation and false light claims. (The fifth defendant confidentially settled the case in Appellant's favor.) However, after a full presentation of the evidence, the trial court, Judge Eric Johnson presiding, directed a verdict on both counts. RE-D 271. Appellant filed a motion for new trial but Judge Johnson had resigned and so the motion was ruled on by Judge Richard Jordan who ruled in essence that since he did not have the transcripts, he was denying the motion. RE-C He then issued a final order, and Appellant filed hisSos ol a a 8 third notice of appeal in the case. This Court consolidated all three of those appeals and ordered Appellant's lead brief to be filed on July 31, 2015. STATEMENT OF THE FACTS Appellant Brett Kimberlin is a father, husband, composer and director of a Maryland based non-profit called Justice Through Music, that works with bands and musicians worldwide to promote pluralism, tolerance and progressive values. Because of Appellant's work, in 2011, he became the focus of a reign of terror by a group of conservative extremists headed by the late Andrew Bretbart, who, in 2009, famously destroyed the national community organization ACORN through the use of edited videos secretly recorded at ACORN offices in Baltimore, Maryland. ‘An activist blogger named Seth Allen began defaming Appellant on his blog in 2011 and therefore Appellant sued him in Montgomery County Circuit Court for defamation. In November 2011, at a trial before Judge Richard Jordan, Appellant won a judgment against Mr. Allen for defamation, which included injunctive and monetary relief. Aaron Worthing, who was well known online as the publisher of the anti- Muslim “Everyone Draw Mohammed” blog, was outraged by the judgment and offered to assist Mr. Allen in getting it overtumed on a motion for new trial. Mr. Worthing portrayed himself as a Virginia attorney and, in December 2011, filed several pleadings on Mr. Allen's behalf to overturn the judgment. RE-D, p. 58 (All page numbers in this brief refer to the trial transcript page numbers in the Record Extract, Exhibit D). Appellant learned that Mr. Worthing was actually an attomey named Aaron Walker from Manassas, Virginia. Because Mr. Worthing had filed documents in the Circuit Court, Appellant advised the court that Mr. Worthing had filed the documents under a pseudonym, and that he was really Aaron Walker. On January 9, 2012, at a hearing scheduled in the case, Mr. Walker/Worthing came to Court and demanded that the judge seal his identity because Muslims could target him| A a oe] ie r c r a A 8 Ak for being the publisher of the Muslim hate blog. 58, 66 After the hearing, Mr. Walker followed Appellant to the Circuit Court waiting room, committed battery against him, and took his iPad. Police responded and Appellant was treated at Suburban Hospital for a contusion to the eye and back pain. Appellant later filed for a Peace Order and criminal charges for assault against Mr. Walker. A few days later, after Mr. Walker’s employer found out about the assault and his activities as publisher of the Muslim hate blog, the employer fired Mr. Walker for attacking Muslims, doing so on company time and on company premises, and for placing other employees in danger. 75-6 Mr, Walker blamed Appellant for his misfortunes and therefore he rallied a group of right wing extremists to destroy the reputation and employment of ‘Appellant through a series of campaigns based on false narratives and malicious legal actions. He acted in concert with Appellees Ali Akbar, William Hoge and Robert Stacy McCain to launch an online campaign called “Everybody Blog About Brett Kimberlin,” using the template of his Muslim hate blog—i.e., create a false narrative and then use social media to get others to pile on. In the case of the Muslim blog, Mr. Walker's false narrative was that the Prophet Mohammed was a pedophile and a terrorist, and that was what he also called Appellant. From May 2012 through September 2013, Appellees published thousands of blog posts, Twitter tweets and other forms of social media falsely alleging that Appellant (1) got Appellee Walker fired from his job, (2) made up the entire story about the court room assault, 72 (3) forged hospital records from the assault, 71 and (4) was a pedophile who raped his wife. The stress from all this proved too much for Appellant's wife and she suffered a mental health issues. Appellant sought to have her evaluated only to find that Appellees Walker and Hoge were in the courtroom, They twisted the hearing to create more false narratives, such as telling their readers that Appellant had falsely imprisoned his wife, threatened her and sexually abused her. They then stalked Appellant's wife, contacted her, offered to pay her money to lie about Appellant, launched a fundraising campaignae 4 which raised thousands of dollars to “save” Appellant's wife, and foisted an attorney on her to represent her in family law proceedings. Appellant's wife told Appellee’s Walker and Hoge that she did not want their money, their assistance, their lawyer or their fundraising. She repeatedly contacted them and told them that the things they were saying about Appellant were not true and to remove them from the Internet. Appellee’s Walker and Hoge refused to remove the defamatory information they had published on the Internet. Instead, they doubled down and falsely asserted that Appellant was threatening his wife and that she was under duress and that she needed protection. Appellant ‘Walker even wrote to her that Appellant was “an unfit father” and that she could get protection from the prosecutor if she would accuse Appellant of a crime. Appellee Walker called the FBI and falsely told them that Appellant had child pornography in his home and that he watched his young daughters undress. Finally, Appellant asked the family court to order an investigation of these false allegations, which was granted, and the Department of Child Services conducted extensive interviews of everyone in Appellant's family and determined that the allegations were wholly specious and without merit. Appellees then began a full-throated defamation/false light campaign against Appellant by posting articles and tweets calling him a pedophile, rapist, and sex abuser. They created or appropriated an online graphic of a “Pedo Bear” (an online graphic connoting an evil child sex predator) with Appellant's photo superimposed on it and repeatedly posted this in tweets and articles over months. Aaron Walker-Allergic2Bull, Twitter@ AaronWorthing, © August 28, 2013-Bethesda Gazette-Comments believed to be written or directed by Defendant Walker under one or more names-Brett...committed August 15, 2013-Vile, Brett Kimberlin’s Manipulation of His Daughter August 12, 2013- Brett Kimberlin is an out-and-out pedophile August 6, 2013-The Pedophile Brett Kimberlin’s “Brass Knuckle Defense” August 5, 2013-So Why is the Pedophile Brett Kimberlin Mad at Usa8 a a as aad) August 3, 2015-For the Pedophile Brett Kimberlin, It’s All About the Kids August 1, 2013-if you just believe in helping get her kids away from her pedophile husband July 31, 2013-Pedophile Brett Kimberlin Violates A Domestic Violence Protective Order July 30, 2013-Brett Kimberlin is a Pedophile August 10, 2013-Twitter-LG is the paid troll of pedophile Brett Kimberlin August 10, 2013-Twitter-I suggest we rechristen Team Kimberlin as Team Pedophilia August 6, 2013-Twitter-The Pedophile #BrettKimberlin Brass Knuckle Defense August 5, 2013-Twitter-Why is Pedophile #BrettKimberlin Mad At Us August 4, 2013-Twitter-Brett Kimberlin will have his trial. But I don’t have to wait to call him a pedo. August 3, 2013-Twitter-Yes, #Brett Kimberlin is a pedo regardless of charges July 31, 2013-Twitter-#Brett Kimberlin Violates A Domestic Violence Protective Order July 30, 2013-Twitter-next hearing date will be in circuit court, where PedoBrett tends to lose. July 29, 2013-Twitter-Brett Kimberlin is a Pedophile July 29, 2013-Twitter-What does #Brett Kimberlin, who tried to have sex with a 12-year old, deserve? July 29, 2013-Twitter-I am not calling him allegedly anything. He is a pedophile. July 29, 2013-Twitter-So I am going to say something definitive. #Brett Kimberlin is a pedophile. William Hoge-Hogewash and Twitter @wijhoge August 15, 2013-She not only needs help with the legal expense involved in getting herself and her daughters free from Brett, she needs help resettling herself August 14, 2013- The Kimberbots are the fanboys, cheerleaders, and enablers who tweet and blog their admiration and support for The Dread Pedo Kimberlin August 13, 2013- You can donate to help Tetyana get herself and her children away from her abusive husband. Click on the Tetyana’s Fund link to learn more. August 13, 2013- Tetyana Kimberlin is trying to get herself free from her abusive husband, She is trying to get her children away from her pedophile husband.‘© August 12, 2013- During that time, he has used mentally abusive tactics to keep her and her children bound to him © August 1, 2013-Brett Kimberlin, Dread Pedo Kimberlin * July 30, 2013- However, I do believe that Brett Kimberlin most likely is a pedophile. * July 29-August 15, 2013-Twitter-Team Kimberlin Post of the Day (directing readers to his Hogewash posts above) © July 29, 2013-Twitter-Brett Kimberlin:Pedophile? Robert Stacy McCain-The Other McCain July 18, 2013-If Brett Kimberlin hates you, he will do anything within his power to harm you — even though he derives no benefit from these destructive acts other than the sadistic vengeful pleasure of inflicting harm. July 18, 2013- Evil is what Brett Kimberlin is. Evil is what Brett Kimberlin 5 does. Everyone who assists Brett Kimberlin is an accomplice to evil, and : silence about Brett Kimberlin’s evil is a form of assistance. on Ali Akbar-Twitter-@ali August 13, 2013-Twitter-We're about to raise some money for an abused r immigrant trying to escape #BrettKimberlin. © August 9, 2013-Twitter-pointed out Brett Kimberlin’s pedophilia rp «July 31, 2013-Twitter-Pedophile and terrorist bomber #Brett Kimberlin July 31, 2013-Twitter- Police, myself, and everyone who has written seriously on the matter believe that #BrettKimberlin killed a grandma to sleep with a 10 yr old. July 31, 2013-Twitter-#Brett Kimberlin has no moral equivalent this side of Satan. July 31, 2013-Twitter-#BrettKimberlin is a pedophile. July 31, 2013-Twitter-So we've uncovered #BrettKimberlin’s big secret: he’s a pedophile with other pedophiles around his children! a ae In addition to the above, Appellee’s Walker and Hoge filed more than a dozen malicious lawsuits, peace orders, and criminal charges against Appellant, all which were dismissed or nolle prossed. These meritless legal actions were filed by these Appellees as part of their reign of terror and as a strategy to use them for a an improper purpose allegations, and then publish articles and tweets breathlessly repeating the false ., to file the pleadings with scandalous and defamatoryallegations as if they were gospel while raising thousands of dollars from gullible readers. 1/ Appellees’ Strategy To Deprive Appellant Of A Defense To These Charges In 1972, when Appellant was a teenager, he was called before a Federal Grand Jury investigating matters at his high school. He was not represented by counsel [ C r c i ‘I/Here is a list of the meritless legal actions filed by these Appellees and their results as listed in the Complaint. Defendant Walker has filed the following lawsuits, Peace Orders and criminal charges against Plaintiff since January 2012: © January 31, 2012, Montgomery County District Court, One Count Perjury (nolle prossed February 10, 2012) © April 17, 2012, Montgomery County District Court, Five Counts Perjury (nolle prossed April 30, 2012) January 30, 2012, Prince William Virginia Circuit Court, Multiple Counts Alleging Criminal and Civil Torts (dismissed by judge December 4, 2012) © June 22, 2012, United States District Court Maryland, Greenbelt, Multiple i Civil Torts, (dismissed by judge November 26, 2012) © March 13, 2013, Montgomery County District Court, Peace Order (denied " 4 by judge on March 13, 2013) © December 2011, Montgomery County Circuit Court, numerous filings for Seth Allen alleging fraud and perjury (denied January 9, 2012) July 30, 2013, Montgomery County District Court, prepared false pleading in Family Court matter alleging sex offense (denied August 12, 2013) © July 29, 2013, Montgomery County District Court, prepared criminal charge for third degree sexual assault (nolle prossed August 23, 2013) Defendant Hoge has filed the following Peace Orders and criminal charges against Plaintiff since February 18, 2013: February 18, 2013, Carroll County District Court, Two Counts Harassment (nolle prossed April 17, 2013) © March 22, 2013, Carroll County District Court, One Count Harassment (nolleprossed April 17, 2013) © March 22, 2013, Carroll County District Court, Peace Order (denied March r 29, 2013) L © April 3, 2013, Carroll County Circuit Court, Peace Order Appeal (denied July 2, 1013) a3 . 1-7.and was later indicted for perjury. After a trial, he was found guilty and served 18 days in the county jail as part of a probationary sentence. The judge intended that Appellant be sentenced under the federal Youth Corrections Act, 18 U.S.C. 5005- 26 (repealed), which provided for expungement of the records at the age of 22, and he did not make any finding that Appellant would not benefit from the YCA which is required if the judge intends to sentence an offender as an adult. See 18 U.S.C. 5010(4). When Appellant reached that milestone and requested the expungement, the judge was unable to do so because the Seventh Circuit Court of Appeals did not allow retroactive application of an intervening Supreme Court case, Dorszynski v. United States, 418 U.S. 424 (1974). Appellees knew about Appellant's perjury conviction and decided that they could file legal actions against Appellant with impunity because of an arcane Maryland rule that prohibits persons convicted of perjury from testifying in any matter, whether as a victim, defendant, plaintiff or witness. That Rule, Court's Article 9-104, states simply and categorically the following: “A person convicted of perjury may not testify.” In the instant case during pretrial proceedings, Appellees, at every hearing and every stage of the case, moved the different judges to prohibit Appellant from testifying under Rule 9-104. Several judges refused to allow Appellant to testify at various hearings, while others allowed him to do so, but Appellant never knew what was going to happen at any hearing because of these inconsistent rulings. Finally, once Appellant was served with Interrogatories by the Appellees and asked to answer them under oath, he filed a motion for protective order, citing inconsistent 9-104 rulings. Instead, the judge imposed sanctions against Appellant for not answering them under oath. Id. Appellant then filed a pre-trial motion to prohibit Appellees from seeking to disqualify Appellant as a witness based on the 40+plus year old= | teenage perjury conviction, and Appellant asked that the Court find Rule 9 104 unconstitutional as a denial of due process. equal protection and victims rights. On August 7. 2014, five days before the trial was to begin, Judge Richard Jordan held a hearing on the motion and stated that it was his opinion that the Rule 9-104 is unconstitutional and that it would be found so if it were ever challenged. However, he refused to make a formal pretrial ruling. instead leaving it to the trial judge. THE COURT. I know it's statutory. I’m not sure the statute is constitutional. That somebody who was convicted of perjury 40 years ago can never testify ever again, no matter what claim he brings, or his (sic) claim is brought against him. ? I think that’s a highly suspect statute, in all honesty. I know that hasn't been raise, but I mean, if Mr. Kimberlin were sued for an automobile accident and that statute would seen to say that he couldn’t say, hey, I had the green light. He just has, to sit back and let the other side tell their story. If he were charge with acrime, he couldn't testify in his own defense. I have to say the statute is remarkable, I can understand its existence. I have to highly question that that would be found constitution (sic) if challenged. .... [RE-E at page 6] On the first day of trial, Appellees again asked the judge to prohibit Appellant from testifying and Appellant asked the judge to find the statute unconstitutional. After a hearing, the judge refused to find it unconstitutional but ruled that Appellant could testify. By that point, literally minutes before testimony was to begin, Appellant was wholly unprepared to take the stand. Judge McGann’s Pretrial Rulings Dismissing Several Claims Appellees filed a pretrial motion to dismiss all the claims, which was heard by Judge McGann on July 1, 2014. He ruled that the defamation and false light claims were Appellant's “money counts” but over Appellant's objection, dismissed four other claims—abuse of process, conspiracy to abuse process, malicious prosecution, and infliction of emotional distress. RE-B. 10eee ee ee es et ed The Trial ‘The trial was scheduled for two days, August 11 and 12, 2014, Day one was reserved for jury selection. On day two, Appellant told the jury that he would show that Appellees engaged in wholesale defamation of him over a period of years which included calling him a rapist, pedophile, and murderer, and that they falsely said that he caused Mr. Walker's termination and concocted the assault by Mr. Walker in order to rally their readers against ‘Appellant and create opprobrium. ‘The Testimony of Appellant’s Daughter Appellant stated that he would call his 15 year old daughter as his first witness to describe to the jury the harm suffered by Appellant, to discuss Appellant’s reputation before and after the defamation, to testify about damages to Appellant and his family, and to refute the Appellees” statements regarding rape, pedophilia and false light. Appellees objected to Appellant calling his daughter to testify, 46, and the trial judge spent a great deal of time telling Appellant that she could not testify about the subject matters at trial. Appellant proffered his daughter as his first witness, but the judge refused to allow her to testify at that time. Finally, he did let her testify after the Appellees had testified, but then greatly limited her testimony on the elements of defamation and false light. Here are some of the statements and rulings by the trial judge with respect to that witness. © She's not a party. 41 © But where is the segue? How does it connect to these defendants? 42 And what is she going to testify that any of these men did to her? 43 © I mean she can’t just get up there and testify about what was going on in the family or any of that because first of all, how do you connect that to ~ it’s like saying you sat next to somebody that had a cold and you caught a cold. 44 iWell my question still is how does your (sic) testify to [falsity of pedophilia] 45 She can’t testify. 47 No one is doubting [harm] but you have to understand something, you are the party in this case, not your daughter. She’s not a party here. 48 She is not a party. 50 Sir, but you've got to understand something. We have rules here, You can’t just bring people in to testify when they A, they didn’t witness anything that they're competent to testify about and B, she is not a party to this lawsuit, so even if they did harm her as it were.....50 ‘Well, I don’t even reach that. I mean reach, I don’t know what you're going to ask her, but I’m telling you you're risking putting this little girl, your daughter on the witness stand and having her testimony not being admitted. Because what you're telling the Court that she's going to testify to, she’s not competent to testify to form a legal point of view. A lay witness can’t come in here and say somebody suffered from depression. 52 Mr. Kimberlin: She certainly has a right to testify about my character and my character as a father .... my reputation is at issue. 52 ‘The Court: Well, you don’t get to put on the character witness first before you take the stand... 53 See you're locked in on your argument and you seem to think that the Court is against you. The Court is not. The Court is making sure everybody plays by the rules. If you were allowed to do what you want to do, a defendant in any case or a plaintiff could come in the court and not testify, not do anything. but just put character evidence up there, That is expressly prohibited by the rules of evidence. You have to put your character at issue. .... [She can’t testify] if you're going to ask her about your character... Now if you put your character as issue and you want to put on a witness to say that he’s a good father, he’s this or that, fine. But you don’t get to do that first. That's just the rules of evidence. Otherwise a party could come into court, just bring a bunch of character witnesses and then rest. That's the reason for the rule. So I’m not telling you she can’t testify, I’m telling you she testify in that order. 53-4 12oe od ee a ee ee dd on c oe) al ee) ee) ee) es | When Appellant's daughter finally took the stand after the four Appellees had testified, the Court refused to allow her to testify regarding harm to Appellant, his reputation, damages, or emotional distress. 233 et seq. Moreover, when she testified that Appellant never showed any evidence of pedophilia, 238, the Court cut off the line of inquiry: Q. Have I ever shown any sexual interest in any of your friends at any ‘THE COURT: Sustained. Q. How about with your sister - THE COURT: Sustained. .... 239 THE COURT: Sustained. Sir, you're going way off base. MR. KIMBERLIN: Your Honor, I need to let this jury understand that we've suffered. MR. OSTRONIC: Objection. .... Q. Do you want this stuff to stop? WITNESS: Definitely, yes. Q. Do you think that it’s hurting you and your career [as a music artist]? MR. OSTRONIC: Objection. THE COURT: Sustained. 240 Q Is it affecting - THE COURT: Sustained. Id. ‘The Testimony Of The Four Appellees Appellant called each of the Appellees to testify and introduced dozens of articles and Twitter tweets over a period of months that they admitted publishing online which showed that they defamed him and portrayed him in a false light. Aaron Walker Q. Did you later tell people that you were terminated [from employement] because of me? ‘A. Yes. 76 .... Q. And in the past three years how many blog posts, roughly, ... how many blog posts have you made about me? ... ‘A. Maybe 100, I'm not sure. 78 13oe ed ee 2 ed ed a ee 8 ma) ee] i Q Okay, you have a Twitter account, right? A. Uh-huh. ... Q. How many approximately tweets have you made about me in the past 2 ¥ years? A. Lhonestly don’t know. Q. Would it be more that 1,000? A. Probably. Q. Would it be more than 5,000? A. 1don't know. 79 ... Q. Have you ever called me a pedophile? ‘A. [have said that I believe based on the evidence that you are. Q. Have you published blog posts that call me a pedophile? A. Yes. Q. Have you published tweets that call me a pedophile? A. Again, based on the information I have I have called you a pedophile. Q. How many blog posts do you think you have published that say I'm a pedophile? A. don't know. Q. One? 80 A. Maybe six, I don’t know. Q. How many tweets do you think you have published (sic) said I'm a pedophile? ‘A. Maybe 30. ... Q. Okay, now in the thousands of tweets that you've made about me, are there positive tweets or are they all negative? ‘A. ... [can’t think of the last time I said something that would tend to put you in a good light Q. Okay. I” going to hand you Plaintiff's Exhibit 8 - A. It appears to be a blog posted about you, okay. Q. Now what is the title of that blog post? A. Brett Kimberlin is a pedophile. 82 ... Q. And could you tell the jury what the title of that [Exhibit 9] is? A. The Pedophile Brett Kimberin’s “Brass Knuckle Romance” end quotes. Q. Uh-huh, and on Twitter you mentioned that you read a lot of tweets about me. Are you familiar with the name that is used on the internet called Pedo Bear? A. Yeah, I’ve heard of it. Q. Okay, can you tell the jury what a Pedo Bear is? A. It’s a darkly comic cartoon character. 's just they use it to depict something as a pedophile... But it is the character is supposed to be this evil pedophile .... Q. So have you ever used that graphic on your to tweet or on your blog? 14me) en) ee) ee ee Se) a oa a (sic) 89 A. Yes. «.. Q. Have you ever published a graphic of a Pedo bear with my face superimposed on it? A. Yes. Q Okay, how many times do you think, just roughly, you've done this? A. [don’t know, maybe more than a dozen. (At that point Appellant entered a packet of tweets from Appellant Walker showing the Pedo bear with Appellant's face superimposed on it). 89 .... Q. So you published depictions of me in the Pedo bear graphic on multiple oceaisions. am I correct? ‘A. Well since multiple means more than two, easily. 92. ... Q. So it’s safe to say you tweeted the Pedo bear with my picture in (sic) it and posted it on your website on numerous occasions, is that fair to say? ‘A. Since it would be more than three, sure. .... Q.Can you read the title to that post? A. Vile Brett Kimberlin’s Manipulation of his Daughter. 116 ... Q. But have you ever posted on your blog that people should not fund my non-profit? 129 ... A. And so I have sought justice against you, that is correct. 130 William Hoge Q. ...How many times do you think you've blogged about me and tweeted, blogged, anything? A. Wel {did word search for your name on my blog afew days ago and it came up 783 times. ... Tweets probably twice that .. Q.... You've called me a pedophile on your blog, haven’ you? A. I've expressed the opinion that I believe you might be. Q And you've used the Pedo bear meme with my picture interspersed with in A. I found it on the internet and as a bit of news reproduced [it]. 137 Q. ... I'm asking you right now, can you read that under that picture [from your blog]? A. It says dread Pedo Kimberlin.... 137 Q You said you might have done how many tweets [about Appellant]? A. On the order of perhaps two or three per post so that would on the order of 1500, perhaps 3.000. Q. Have you ever called me a pedophile on your blog or on Twitter? A. [have referred to you as one. yes. 139 Q Have you ever filed charges against me? 144 A. Yes. 145 Q So you accused me of crimes that I've never been convicted of, am [ 15| oe ead ar oul correct? 147 A. That's true. Q Okay, you filed charges, let me ask you this. When you file charges against me, the caption of that charge reads State of Maryland versus Brett Kimberlin. A. Yes. Q. And then you, have you ever taken that charge, that title and gone on your blog or on Twitter and said something to the effect State of Maryland charges Brett Kimberlin with X? ‘A. [have reported the fact that you have been charged with things by me or by other people. 148. Q. So you create the document, you file the charge and then you report it as gospel. Ali Akbar Q Have you ever called me a pedophile? A. [believe you're a pedophile. Q So you admit that you've called me that? A. ... I’ve called you a pedophile and I believe you're a pedophile. Q. Okay, so, but you have a Twitter account, right? A. [have a very popular Twitter account. 153 Q Did you ever write a Twitter post ever on July 27, 2013 that said Brett Kimberlin is a pedophile and his hired cyber thugs hate when we tweet about it, did you ever write that? ‘A. I don’t recall that tweet in particular but I believe that statement to be true. 158 Q So we've uncovered Brett Kimberlin's big secret, he’s a pedophile with other pedophiles around his children. ‘A. You have a convicted child pornographer filming your 14-year old daughter's music videos. Q. Did you on July 29, 2013 that Neal Rauhauser supports pedophile Brett Kimberlin? ‘A. Objection, that’s a non-party. 159 Q Excuse me on July 31st, 2013 did you say Brett Kimberlin is a pedophile? A. [don’t recall what I wrote on that date... Robert Stacy MeCain Q. Did you ever publish a blog post..... First of all can you read the title? ‘A. The title is How to Get a Million Hits On Your Blog In Less Than A Year. Q Point number 4 — A. .... Make some enemies. [quoting from post] We'll have none of your 16ie ag a a bipartisan civility around here you sissy weaklings. This here is the inner tubes and we're as nasty as we want to be.... 164 [continuing to read from post] Easy as it would have been to ignore Klein I him upon the delightfully fun idea of laying into him Arkansas knife fight mode. If you're going to cut a man, eviscerate him... 165-6 [continuing to read] Sex sells. ... You'd be surprised at the key word combinations that bring waffic to a political blogger who understands this. Q. So in other words make enemies, and raise money and use sex to do that. A. Everybody loves a pretty girl — Q. Now have you used those things in your blogging about me, I'm your enemy, right? ‘A. Do you hate me with a passion, sir— Q. Did you tweet that my daughter can't sing a lick? 170 MR. OSTRONIC: Objection. ... THE COURT: So I’ll sustain the objection as to any questions having to do with someone who is not a party in this case. 171 Q. How many times have you written posts about me? A. ... Well let's see from March 17" to July 5, 2012, Im pretty sure I posted daily, so that would have been 42. Q So if I were to show you 782 tweets that you've had — A. T would tell you that only six of those in your hand that you’re showing me were tweeted before you filed this lawsuit. 172 Q. Now in your postings and tweets have you ever called me evil, the epitome of evil? 174 ‘A. [don’t know about the epitome of evil but I've used the phrase evil to apply to you several times. 175 During a break in Appellee McCain's testimony, the judge said the following: ‘THE COURT: See, here’s what probably surprised you. ‘These men didn’t come in here and say they didn’t say these things. They came in here and said yeah T said that. You don't have to prove that they said it. They testified that they said it. 192 Appellee McCain then testified that his well-read blog has linked to stories by Appellees Hoge, Walker and Akbar about Appellant. 210 He again said that he called Appellant “evil.” 195. He said that the Washington Post and one of its reporters, Monica Hess, were “a disgrace to journalism” because they published “evil lies” about Appellant. 196-7. He said that he did not need to use the actual 7= a 373 3 on word “pedophile” to cast Appellant as a pedophile. 208-9. Appellees Move For Directed Verdicts At the close of testimony, the Court accepted the exhibits Appellant had introduced into evidence, 241. The Appellees then moved for a directed verdict arguing that Appellant failed to show that they defamed him or portrayed him in a false light. They argued that Appellant had not provided a “single shred of evidence of the falsity of the defamation charge of the false light charge,” and no evidence of harm or malice, and no showing that Appellant’s reputation was harmed as a result of the statements by Appellees. 242-3, Appellant argued that under Shaprio v. Massengill, 105 Md. App 743 (1995), accusing someone of a crime or sexual misconduct constitutes per se defamation. In fact, damages are presumed and the statements are considered false and defamatory per se. 244, 248 He said that the Appellees called him a pedophile, said he engaged in sex abuse, posted his face superimposed on a Pedo bear graphic, and repeated this “hundreds of times if not thousands.” 245 He said that he attempted to have his daughter testify to harm, reputation, public scorn, hatred, contempt and ridicule but the Court would not allow that testimony. He said that the jury should make the findings as to the elements of defamation and false light, including falsity and the amount of damages. 256. ‘The trial court then stated the following: «I didn’t hear any malicious statements made by— © But what evidence is there that has put in that any of these things... 245 * What evidence is there that (calling Appellant a pedophile is] false? © Why did you say it was false? I understand you're saying you are not a pedophile. But you can argue that. Who has testified to that? © Why is it defamation per se? 249 © Where is the malice? (Pedophila] is not a crime. 250 ‘© Okay, do we have that the statement was false?.... And who testified to that? 251 What evidence is there that the statement was false? 252-3 «Any evidence [that the] statement subject{ed you] to contempt? 18al 1) oe) val a8 7) =) es) one ae rp | =] onl ee] * Well you could testify, you didn’t. It’s your choice. Nobody's criticizing you for it. 255 When you say that it’s [automatic] could you have just come in here and say they called me a pedophile, plaintiff rests. © So what do we tell the jury about damages. © Does it matter in your argument at all that there's no such crime as pedophilia. ... But pedophilia is not a crime. You keep using the word crime. They have not accused you of a crime. 257 ‘* What evidence is there that the portrayal of you with respect to [false light] was false, what evidence is there? © Who testified that it was false? ... Yes, the false light court I'm talking about. There is no per se false light. 259 © But ata trial wouldn’t somebody, somebody, some evidence somewhere have to say that wasn’t true? ... Otherwise if I buy into your argument all a person would have to do is go into court and say things and then just rest. Give it to the jury. 260 They're (sic) plenty of people that were portrayed as good fathers that were pedophiles. 261 ‘The Trial Court’s Ruling Directing Verdicts In Favor Of Appellees ‘The trial judge granted the Appellees’ motion for directed verdict. First, he ruled that there is “not one scintilla of evidence in this case that the statements that were made by these individuals were false.” 266 ..."There was no testimony that they were false.” Second, he stated that there was no per se defamation because being a pedophile “is not a crime in Maryland or in any other state that I am aware of.” 267. He then cited Pertitt v. Erie Insurance Exchange, 117 Md. App. 212 (1997), for the proposition that being a pedophile and pedophilia are “mental disorder{s}} and from the psychological professions point of view it is a mental condition. It .nd clearly pedophilia from the medical profession point of view is not a crime ... there is no such crime as pedophilia” 269-70. The court concluded: “Assume arguendo that pedophilia was a crime and it is not, .... Assume arguendo that it was, there was absolutely no evidence in this case of exactly to what the defendant (sic) is alleged to have done. And so think that the case falls short of rising to the level that it should go to the jury. 19ee ae a oy @s os a8 ie | p | a + | . ‘And for those reasons the Court issues a judgment in favor of the defendants, ~ 271. Appellant filed his third Notice of Appeal, and this Court consolidated all of them, and ordered Appellant's brief to be filed by July 31, 2015. ARGUMENT I COURTS AND JUDICIAL PROCEEDING ARTICLE 9-104 IS UNCONSTITUTIONAL, AND THE LOWER COURT’S FAILURE TO FIND IT UNCONSTITUTIONAL DEPRIVED APPELLANT OF DUE PROCESS, EQUAL PROTECTION, AND MEANINGFUL ACCESS TO THE COURT Court’s Article -104 states: “A. person convicted of perjury may not testify.” There are no qualifiers or exceptions to this rule—it is categorical. It is applicable to plaintiffs, defendants, witnesses and victims alike. This rule is therefore unconstitutional as a denial of access to the courts, due process, equal protection and victims’ rights. In the instant case, the Appellees invoked the rule at every pretrial hearing where Appellant was required to testify and even to statements made under oath in documents filed with the Circuit Court, Several judges ruled that Appellant could not testify. When Appellant filed a pretrial motion to find Rule 9-104 unconstitutional so he could prepare himself to testify at trial, he was told that the rule is most likely unconstitutional and would be found so if challenged, but that the trial judge would have to decide whether Appellant could testify. And then on the day of trial, minutes before evidence was to begin, the trial court refused to find it unconstitutional but did rule that Appellant could testify. By that time. Appellant had no time to prepare himself to testify, thereby prejudicing him, and depriving him of due process and meaningful access to the court. Appellant has been unable to find any other rule in any other state in the country that deprives an entire class of people the right to testify. Rule 9-104 comes from common law in Maryland and very little case law is on the books 20eet 2 oN oa Sos =f as ae c r even discussing it. See Myers v. State, 496 A. 2d 312 (Md. 1985) (person not convicted for perjury when sentenced to probation before judgment and therefore Section 9-104 does not apply to witnesses testimony). In 2012, both the Maryland House (House Bill 926) and Senate (Senate Bill 673) introduced bills to repeal the rule. The Carroll County State's Attorneys ‘ims and office requested that the law be amended to allow the testimony of vic witnesses. Senator Joseph Getty sponsored the bill and the Carroll County House of Delegates cross-filed the House bill. In the words of the stat “There are many situations whereby without the victim's testimony, there would be no case,” the state wrote. “Think about cases of domestic violence, which almost always take place behind closed doors and generally only have two witnesses present ~ the abuser and the victim. To disallow the victim to testify would basically grant the abuser carte balance to continue to abuse the victim, no fear of any legal consequences. Without allowing the victim... to testify, it would be impossible to convict the rapist, as there would be no testimony that the sex was non-consensual.” {See Senate Testimony-Appendix A] The Senate voted unanimously for repeal, and the House Judiciary Committee voted to repeal it. Unfortunately, the full House did not vote and the legislation died at the end of the session. Rule 9-104 is Unconstitutional and Conflicts With Many Other Statutes ‘The Supreme Court in Rock v. Arkansas, 483 US 44 (1987) held that a state law or rule or court decision cannot deprive a criminal defendant of his right to testify. In Rock, the defendant was not allowed to testify because he had been hypnotized and Arkansas courts had ruled that persons who had been hypnotized cannot testify. The Supreme Court, however, disagreed: The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that "are essential to due process of law in a fair adversary process.” Faretta v. California, 422 U. S. 806, 819, n. 15 (1975). The necessary ingredients of the Fourteenth Amendment's guarantee that no one shall be deprived of liberty without due process of law includes a right to be 21os oS ee eS ee a os a al oe a heard and to offer testimony: ... See also Washingtonv. Texas, 388 U. S. 14 (1967) ("It was thought that if two persons charged with the same crime were allowed to testify on behalf of each other, “each would try to swear the other out of the charge.’ This rule, as well as the other disqualifications for interest, rested on the unstated premises that the right to present witnesses was subordinate to the court's interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be perjured, even if it were the only testimony available on a crucial issue.") ‘The Court of Appeals of Maryland has applied Rock in Jordan v. State, 591 A2d 875 (Md. 1991) (the fundamental constitutional right of a criminal defendant to testify in his own defense is deeply entrenched in our modern day jurisprudence). Under Rock, Rule 9-104 is unconstitutional because it deprives a criminal defendant previously convicted of perjury of the right to testify. But the many principles discussed in Rock also apply to civil cases such as.the instant case. If a civil plaintiff were not allowed to testify, he would be deprived of meaningful access to the courts ‘as guaranteed by the First Amendment, compulsory process, due process as guaranteed by the Fifth Amendment, and equal protection as guaranteed by the Fourteenth Amendment. Moreover, the jury would not be able to have the necessary information to arrive at the truth. See Rosen v. United States, 245 U.S. 467, 471 (1918) (“{T]he conviction of our time [is] that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court . . . .”) Additionally, it would violate Maryland Article 19, because it would in effect leave him with no remedy under the law. Cf. “That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without 22oo 88d ol ee ee ee ml oan) oa) a sale, fully without any denial, and speedily without delay, according to the Law of the land.” Finally, Rule 9-104 conflicts with an entire body of statutes, rules and decisions that form the civil and family law code in the state of Maryland. For example, victims have a right to file Peace/Protective Orders and criminal charges that are made under oath and testified to before a Commissioner or Judge. Md. Code 3- 1503(b)(1) (Peace Order application must be made under oath). Those victims then must testify in court or else the Peace/Protective Order and criminal charge will be denied. In civil cases, parties have a right to call witnesses and to testify themselves. Md. Rule 5-601 (Except as otherwise provided by law, every person is competent to be a witness.) And Rule 5-609(b) sets a time of 15 years for impeaching a witness with a conviction. Rule 9-104 in effect nullifies those statutes and rules. In the instant case, Appellees have used Rule 9-104 as a grant of immunity to commit wholesale torts against Appellant and file malicious litigation against him because Appellant cannot meaningfully defend against the torts or the litigation due to his 40 year old juvenile perjury conviction. In the instant case, Appellant repeatedly tried to get pretrial rulings on the constitutionality of Rule 9-104 so he could prepare for trial but the courts refused to make those rulings or rule whether he could testify. It was not until literally minutes before testimony was to begin that the trial judge said Appellant could testify, but that delay deprived Appellant of meaningful access to the courts, due process and equal protection. Trials are not games of gotcha, whim or arbitrariness. Appellant had a constitutional right to testify and prosecute his case. Instead, he was left swinging in the wind without knowing whether he would be allowed to testify. It was unfair and prejudicial to eave Appellant without a ruling on whether he could testify until the trial started. 23eo 8 ee ee es ia r Bt THE TRIAL JUDGE ERRED ON THE LAW AND THE FACTS WHEN RULING THAT APPELLANT DID NOT PROVE DEFAMATION AND FALSE LIGHT The trial judge erred in multiple ways regarding the defamation and false light claims. First, he said that Appellant did not show what the Appellees did wrong. Second, he said that repeatedly publishing that Appellant is a pedophile and engaged in pedophilia was not defamation or per se defamation. Third, he said that Appellant did not prove that Appellees’ statements were false. Fourth, he said that Appellant had not presented “one scintilla” of evidence showing that the Appellees portrayed Appellant in a false light. ‘The Wrongs By Appellees The Maryland Court of Appeals has defined a defamatory statement as one which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person Batson v. Shiflett, 325 Md. 684, 722- 23 (1992). Appellees wronged Appellant by defaming him through false accusations of pedophilia, being a pedophile and sex abuser in order to subject him to public scorn, hatred, contempt and ridicule. They wronged him by portraying him in false light through these accusations and piling on with statements that he was “evil” and the “epitome of evil.” ‘They acted with malice by repeating these false accusations hundreds of times over a period of years and on various social media platforms, by trying to have Appellant arrested based on the false statements, and by refusing to correct and remove the false statements. The Appellees acted with knowledge of the falsity of their statements and with reckless disregard for the truth. ‘The False Statements Constituted Per Se Defamation 241 1712 Tl_ TAA TAs i r l oe at ot es Gee Ge “a eae The trial court, at the conclusion of the evidence at trial, stated that pedophilia is not a crime and so calling Appellant a pedophile in scores of tweets, blog posts and public statements did not constitute per se defamation. “Assume arguendo that pedophilia was a crime and it is not, even though as. I said the plaintiff kept referring to it as a crime, it's not a crime. Assume arguendo that it was, there was absolutely no evidence in this case of exactly to what the defendant (sic) is alleged to have done, And so I think the case falls short of rising to the level that it should go to the jury. And for those reasons the Court issues a judgment in favor of the defendants.” 271 The Court erred as a matter of law in its ruling for the directed verdict on the defamation claim. Publishing statements calling Appellant a pedophile, rapist and abuser, saying he engaged in pedophilia, forged hospital records and lied in court pleadings is considered per se defamation according to well-established state and federal case law. In a case very similar to this one, Longebehn v. Schoenrock, 727 NW 2d 153 (Minn, CA, 2007), the trial judge ruled that calling someone “Pat the Pedophile” did not constitute per se defamation. The court of appeals disagreed: Here, the jury found that respondent called appellant "Pat the Pedophile,” but that he did not accuse appellant of being a pedophile. Because there was no accusation, the district court concluded that the statement was not defamatory per se. But the test is not whether the speaker intended to make an accusation, but whether a reasonable person under similar circumstances would understand the statement as making an accusation or imputing criminal or serious sexual misconduct to another. See Anderson, 262 N.W.2d at 372 ("[TJhe test [is] whether a reasonable person would believe the statement to be defamatory."). With this rule in mind, we hold that in almost every circumstance a reasonable listener would believe that calling a person a pedophile imputes serious sexual misconduct or criminal activity to that person. It is, therefore, defamatory per se. This is especially true where, as in this case, the listener had no prior knowledge that the offensive name was a nickname that the community commonly used to signify its displeasure with appellant a local police officer dating a much younger woman. Furthermore, respondent has cited no case, and our research has revealed none, holding 25i] that calling a person a pedophile could be understood by a reasonable person to be anything but defamatory per se. [at 159] Maryland law states that in the case of words or conduct actionable as defamation per se, "the injurious character of the words is a self-evident fact of common knowledge of which the court takes judicial notice and need not be pleaded or proved." Haskins v. Bayliss, 440 F.Supp.2d 455, 461 (D. Md. 2006); Shapiro v. Massengill, 105 Md. App. 743 (Md. 1995); Samuels v. Tschechtelin, 763 A.2d 209. 244-45 (Md. 2000). Under Maryland law, statements are defamatory per se when the statements possess innately injurious characteristics. Bouie v. Rugged Wearhouse, Inc., 2007 WL 430752 (D. Md. 2007); Hearst Corp. v. Hughes, 297 Md. 112, 125, (1983). Accusing an individual of committing a crime is an example of a statement that is defamatory per se. See, e.g., Carter v. Aramark Sports and Entertainment Services, Inc., 153 Md. App. 210, 238 (2003)(allegation that a person is a thief is defamatory per se): American Stores v. Byrd, 181 A2d 333 (Ma. 1962) (if statement made in ordinary lay language that would impute a crime or guilt, sufficient to prove libel); Brown v. Farkas, 511 NE 2d 1143 (Ill. 1986) (call to DSS that employee bragged about sex with daughter is per se defamation); Conner v. Scruggs, 821 So 24 542 (LA App. 2002); Smith v. Danielczyk, 928 A2d 795(Md. 2007)(per se defamation to impute commission of a crime for which a person might be indicted and punished); Pollitt v. Brush Moore Newspapers, 136 ‘A2d 573 (MD 1957) (same); Farnum v. Colbert, 293 A2d 279 (DC 1972) (same). In fact, the DC Superior Court recently found defamation from the statement that Michael Mann is the “Jerry Sandusky of climate change.” The Court found that to “place Plaintiff's name in the same sentence with Sandusky (a convicted pedophile) is clearly outrageous.” Mann v. National Review, 2012 CA 008263 B (Aug. 30, 2013). 26r U Pp | Black's Law Dictionary 5 Ed, West 1970, page 376 states the following with regard to defamation per se: “In respect of words, those which by themselves, and as such, without reference to extrinsic proof, injure the reputation of the person to whom they are applied.” Defamation per se means “defamation in itself.” Again, according to Black’s at p 1245: “such words as are deemed slanderous without proof of special damages. Generally an utterance is deemed ‘slanderous per se’ when publication (a) charges the commission of a crime, (b) imputes some offensive or loathsome disease which would tend to deprive a person of society, (©) charges a woman who is not chaste, or (d) tends to injure a party in his trade, business, office or occupation...” Calling Appellant a pedophile connotes criminal activity and illegal sexual activity. Black's defines pedophilia as: “1. An adult’s sexual disorder consisting in the desire for sexual gratification by molesting children, esp, prepubescent children. 2. An adult's act of child molestation....‘* (emphasis added). By calling Appellant a pedophile, Appellees were imputing an act of serious and illegal sexual misconduct (rape and molestation) to Appellant. “A statement is defamatory per se if it imputes serious sexual misconduct to the subject of the statement” Baufiled v. Safelite Glass Corp, 831 F. Supp. 713, 717 (D. Minn. 1987) See also, Restatement (Second) of Torts, section 574, Regardless of the context in which the word is used, “pedophile” will not have an innocent meaning. By definition, the use of the word accuses Appellant of engaging in pedophilia, child rape, a heinous criminal offense. See Miles v. Ramsey, 31 F. Supp. 2d 869 (D. Co. 1998)(accusing man of being pedophile defamatory); Bochan v. La Fontaine, 68 F. Supp. 2d 692 (D. ED Va. 1999)(posting on Internet chat rooms that plaintiff was pedophile, constitutes prima facie defamation). In the instant case, the Appellees’ use of the words pedophile and pedophilia in their many published statements and utterances were intentional accusations of crimes—i.e., sex with children. In fact, the Appellees specifically stated that they wanted Appellant arrested and prosecuted for sexual assault of a child, even 27ed oe et ee ed ed Aa 43 os =f oa ga ee a though no such sex crime ever occurred. Appellant presented dozens of documents at trial showing the Appellees’ use of these defamatory words, (which imputed criminal activity) and how they intended those words to be interpreted. Appellees admitted that they said these things in order to injure Appellant. The Appellees even testified that they meant that Appellant was a criminal pedophile who committed statutory rape and should be in prison. For example, Mr. Walker admitted that he published at least 30 tweets on Twitter calling Appellant a pedophile and published graphics with Appellant's face photo-shopped on to a Pedo Bear. . “Q How many tweets do you think you published said I'm a pedophile? AMaybe 30.” (Tr. 81). Q. Have you ever published a graphic of a Pedo Bear with my face superimposed on it? ‘A. Yes. 89 Appellee Akbar even stated this many times in his closing argument: “I still believe he’s a pedophile.” Tr. 263. “Brett Kimberlin is a pedophile.” Tr. 265. As this Court noted in Samuels, defamatory communications can be based on statements of fact or opinion. 763 A.2d at 242. Moreover, a defamatory utterance is not only determined by a dictionary definition of the word but by how a reasonable person would understand the use of the word. In the case of the word pedophile, any reasonable person would understand that means sex with prepubescent children. Despite that, the trial court erroneously ruled that Appellant had not presented any evidence of “what the Defendants had done.” Finally, Appellant did address the issue of falsity at trial. First, he attempted to introduce emails that Appellant’s wife had sent to Appellees Walker and Hoge where she stated that the allegations were false, However, the court sustained objections to those emails. Second, Appellant's daughter did testify that the allegations of pedophilia were false despite the trial court’s repeatedly ruling that she could not testify that Appellant never showed any untoward inclinations toward her, her friends or her sister. She also testified that Appellant was a good 284 father who never raised a hand to her or her mother. Third, Appellant showed through the testimony of various Appellees that the false allegations of sex abuse were nolle prossed, investigated and found malicious by the Department of Child Services. Clearly, Appellant demonstrated falsity and showed that Appellees’ defamatory statements exposed him to public scorn, hatred, contempt, or ridicule toa third persons who reasonably recognized the statements as being defamatory. Appellant Provided Overwhelming Evidence Of False Light Invasion of Privacy Appellant asked Appellant Walker the following question and got a candid answer: Q Okay. now in the thousands of tweets that you've made about me, are there positive tweets or are they all negative? A. ... [can’t think of the last time I said something that would tend to put you in a good light.... 81. To prove a claim of false light invasion of privacy, a plaintiff must show that 1) publicity was given to a matter concerning another that places the other before the public in a false light; 2) the false light in which the other person was placed would be highly offensive to a reasonable person; and 3) the actor had knowledge of or acted in reckless disregard to the falsity of the matter. Mazer v. Safeway, 398 F. Supp. 2d 412, 431 (D. Md. 2005). There are four different kinds of invasions of privacy: (a) unreasonable intrusion upon the seclusion of another, (b) appropriation of the other's name or likeness, (c) unreasonable publicity given to the other's private life, and (4) publicity which unreasonably places the other in a false light before the public. ‘The text writers and authorities make it clear that an invasion of the right of privacy by anyone of the above four courses of conduct may give rise to a cause of action and, on occasion, there may be an overlapping or concurrent invasion by any or all of the above means working toward the injury of the plaintiff. 294 od 28 oe st 2 2 a tl 2) 2s 8 68 3 ae as ot G9 a Restatement Second, 652A, Comment d. Cited in Kilpa v. Board of Education, 54 Md. App. 644 (1983). The Appellees testified that they appeared at court hearings involving Appellant's private family matters, that they inserted themselves in those private family matters, and that they recklessly published statements that placed Appellant in a false light that would be highly offensive to a reasonable person. Several of the Defendants testified that based on those court hearings, they published statements calling Plaintiff a pedophile, rapist and abuser. None of these statements was true yet they were made intentionally in order to place Plaintiff in a false light and invade his privacy. They repeatedly portrayed Appellant as the “epitome of evil” 174 who caused Appellee Walker’s job termination, “lied” about being assaulted by Appellee Walker and “forged” 71 hospital and police reports relating to that assault. 72 These statements would be highly offensive to a reasonable person because they involve abhorrent, reprehensible and criminal behavior. The Defendants also testified that they appropriated Plaintiff's likeness by placing his photograph on a depiction of a “Pedophile Bear” and publishing that graphic scores of times on various blogs and Twitter accounts. For example, Defendant Walker testified: Q Have you ever published a graphic of a Pedo bear with my face superimpose on it? A. Yes. Q. Okay, how many times do you think, just roughly, you’ ve done this? A. Idon’t know, many more than a dozen. (Tr. at 89). Moreover, the Appellees had knowledge of and acted with reckless disregard to the falsity of these matters. Appellees knew that Appellant was never arrested, prosecuted or sentenced for any sex crimes. They knew that no person in an official capacity bought into their false narratives about sex abuse, perjury or any other nefarious, unethical or criminal activity. They knew that Appellant's wife and daughter had told Appellees that their accusations were untrue. Moreover, 30these Internet bloggers never once contacted Appellant to ask him about their accusations. Instead, they repeatedly published their articles and tweets, and posted Appellant's photo on a Pedo Bear graphic so they could be the accuser, the judge, the jury and the executioner of Appellant's reputation. In short, the trial judge clearly erred in finding that Appellant did not prove false light. ‘THE TRIAL COURT INVADED ‘THE PROVINCE OF THE JURY AND FAILED TO FOLLOW MARYLAND LAW REGARDING DIRECTED VERDICTS In ruling upon a motion for a directed verdict, the court must resolve all evidentiary conflicts and inferences that may naturally and legitimately be deduced therefrom in favor of the plaintiffs right to recover. Plitt v. Greenberg, 242 Md. 359 (1966); Langville v. Glen Burnie Coach Lines, Inc., 233 Ma. 181 (1963); Smith v, Bernfeld, 226 Md, 400 (1961). The Court of Appeals in the case of Plitt, supra, stated: This Court has always maintained that if there be any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court has invaded the province of the jury by declaring a directed verdict. Geschwendt v. Yoe, 174 Md. 374, 381, 198 A. 720 651*651 (1938); Hanrahan v. Baltimore, 114 Md. 517, 535, 80 A. 312 (1911) and prior Maryland cases cited therein. Judge Homey, for the Court, in Smack v. Jackson, 238 Md. 35, 37, 207 A.2d 511 (1965) stated the rule succinctly when he said: "[A] party is not entitled to a directed verdict in his favor unless the facts and circumstances are such as to permit of only one inference with regard to the issue presented." [242 Md. at 368]. In the instant case, Plaintiff presented overwhelming evidence to show that the Appellees defamed him by calling him a pedophile, rapist, and abuser. That evidence came in the form of blog posts, tweets and testimony by the Appellees. This was legally relevant and competent evidence that a rational juror could infer a fact in issue -- that the Appellees defamed Appellant. Moreover, Appellant presented strong and uncontroverted evidence that the Appellees portrayed him in a false light as set forth in Argument II above. He 31a 8 presented relevant evidence that the Appellants invaded his privacy by publishing private information and maliciously twisting a court hearing involving a private family matter into published accusations of spousal abuse, pedophilia, and rape. This evidence included the Appellees’ own testimony and their published ‘statements. The trial court did not resolve a single issue in favor of Appellant, as required by Maryland law. Instead, the trial court, over Appellant's strenuous objection, invaded the province of the jury by resolving the case, evidence and inferences in favor of the Appellees instead of Appellant, in violation of well-established precedent from this Court and the Maryland Court of Appeals. This constituted reversible error. Iv ‘THE TRIAL COURT PREJUDICED APPELLANT BY DEPRIVING HIM OF THE RIGHT TO PUT ON EVIDENCE TO PROSECUTE HIS CASE The trial judge in deprived Appellant of a fair trial by limiting important evidence that would have shown the falsity of Appellees statements and other elements of the two claims. Specifically, he refused to allow Appellant's daughter to refute the allegations of pedophilia by testifying that Appellant never exhibited any untoward interest in her, her friends or her sister. 239 This testimony would have created a factual issue for the jury to decide. ‘The judge also refused to allow her to testify regarding Appellant’s reputation and what happened to that reputation after Appellees defamed him with statements of pedophilia. She would have testified that prior to the defamatory statements, neighbors and parents of her friends were friendly and would let their children visit her home and have sleepovers with her. But after the defamatory statements, these people did not want to have anything to do with her or Appellant, and would not let their children visit or even talk with them. This is exactly the type of testimony that is required in defamation cases to show reputational harm. See Batson v. Shiflett, 325 Md. 684, 722-23 (1992)(defamatory statements expose a 32oo ot 28 2s de co | i [ i person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person). ‘The judge would not allow Appellant to present complete evidence about the courthouse assault by Appellee Walker, which would have shown that the Appellees defamed Appellant by accusing him of forging hospital records and filing false charges against Appellee Walker. 71 The judge would not allow Appellant to present evidence about the employment termination of Appellee Walker, which would have shown that Appellees defamed him by accusing him of causing that termination, 76 The judge would not allow Appellant to present any evidence of emails sent to Appellees Walker and Hoge from Appellant's wife stating that the things they were saying about Appellant were untrue and should be deleted from the Internet. 119 In sum, the judge’s rulings limiting the evidence Appellant could introduce prejudiced him and deprived him of a fair trial. Incredibly, the judge later ruled that Appellant had not proven his case because he did not present sufficient evidence, yet the judge had prevented relevant, competent and powerful evidence from being entered into evidence. This constitutes reversible error. v JUDGE MCGANN PRETRIAL IMPROPERLY DISMISSED THREE CLAIMS ON APPELLEES’ MOTION TO DISMISS On July 1, 2015, Judge McGann held a hearing on Appellees’ Motion to Dismiss and ruled the claims involving abuse of process, conspiracy to abuse process, and intentional infliction of emotional distress. This constituted error. As noted above and in the Complaint, Appellees filed dozens of frivolous and malicious criminal charges, peace orders and civil cases against Appellant, all which were dismissed. ‘They then used those legal pleadings improperly -- as a basis for their defamatory publications, and this inflicted “special injury” on Appellant. As noted above, the Appellees admitted that they wanted to cause 33oe) -8 oh 4 24 4 ae 4 oe ae 4 a) a7 7474 Appellant deep emotional distress with their publications. Judge McGann therefore erred in dismissing these claims. Cf. Wesko v. GEM Inc, 272 Md. 192, 196- 97 (1974), the “cases make it clear that for an action for malicious use of civil process, and such is the issue here, to succeed, several elements must co-exist: (i) the institution of civil proceedings (ii) without probable cause (iii) with malice (iv) that the proceedings have terminated in the plaintiff's favor, and (v) that damages were inflicted on the plaintiff by seizure of his property or other special injury.” In Batson y. Shiflett, 325 Md. 684, 733 (Md. 1992), the court defined intentional infliction of emotional distress as: {"(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." In comment (i) to the Restatement it is expressly stated that this rule also covers a situation where the actor knows that distress is certain, or substantially certain, to result from his conduct. In order to satisfy the element of extreme and outrageous conduct, the conduct "must be ‘so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” In Womack v. Eldridge, 215 Va. 338 (1974), the defendant deceitfully obtained the plaintiff's photograph for the purpose of permitting a criminal defense lawyer to show it to the victims in several child molesting cases in an effort to have them identify the plaintiff as the perpetrator of the offenses, even though he was in no way involved in the crimes. While the victims did not identify the plaintiff, he was nevertheless questioned by the police and called repeatedly as a witness. As a result, plaintiff suffered shock, mental depression, nervousness and great anxiety as to what people would think of him and he feared that he would be accused of molesting the boys. The court, found infliction of emotional distress: “Most of the courts which have been presented with the question in recent years have held that there may be a recovery against one who by his extreme and outrageous conduct intentionally or recklessly causes another severe emotional distress...” In the instant case, Appellees engaged in outrageous and extreme conduct by falsely publishing the defamatory statements accusing him of heinous crimes and 344 nefarious conduct, and demanding that he be investigated, arrested and imprisoned for pedophilia, rape, murder, and other serious crimes. This abhorrent conduct has kept Appellant under siege for years, and caused extremists to come to his home, take pictures of him and his daughter, and make threatening calls to him, his family and his neighbors. No person in a civilized society should be made to endure such conduct. CONCLUSION For the foregoing reasons, Appellant moves this Court to (1) reverse the trial court's decision directing a verdict in favor of Appellees; (2) find that Rule 9-104 is unconstitutional and Appellant was prejudiced by the lower court's failure to find it unconstitutional prior to trial; (3) find that the trial court failed to follow precedent when directing a verdict without resolving all matters in favor of Appellant; (4) find that the trial court committed error by limiting evidence and testimony favorable to Appellant; and (5) find that the lower court erred in dismissing the abuse of process, conspiracy to abuse process and intentional infliction of emotional distress claims. Respectfully submitted, Brett Kimberlin STATEMENT AS TO TYPEFACE: The font used in this brief is Times New Roman with 13-point type and proportional spacing, CERTIFICATE OF SERVICE I certify that I emailed a copy of this appeal brief to Attomey Patrick Ostronic and mailed a copy to Appellant Ali Akbar a Worth, TX 76137 this 31* day of July, 2015. Brett Kimberlin 35eee Ne ae ed Ge Sd a 7 as APPENDIX A Testimony in Maryland Senate in Support of Repeal of Rule 9-104 + Testimony of Senator Joseph Getty * Testimony of Maryland Coalition Against Sexual Assault * Testimony of Rape Crisis Intervention Service of Carroll County * Testimony of Maryland Crime Victim’s Resource Center/ Josten M. Gerry p James Sena Office Builing 1 Bladen Stet, Room 401 sano Carel Gi Implied at tor olay 8 eee Jmph Cayenne oa weet Ce : sp nino is Reon ‘ie Coie The Senate of Maryland Legit aes ‘ANwAPOLIS, MARYLAND 21401 Tipu Open Cont ‘TESTIMONY OF SENATOR JOSEPH M. GETTY BEFORE THE House Jupictary COMMITTEE ‘SENATE BILL 673 COURTS AND JUDICIAL PROCEEDINGS — PROHIBITION AGAINST TESTIMONY BY CONVICTED PERJURER - REPEAL As amended, Senate Bill 673 entirely repeals the prohibition on convicted perjurers testifying in court. This is a significant revision to the original bill (which was cross-filed with House Bill 926) which only repealed the prohibition on convicted perjurers testifying in court when the witness was the victim. House Bill 926 was given an unfavorable report by this committee — but I proposed to the committee that the significant amendments in the Senate make this a new bill (not a reconsideration of the prior cross-file). The current law appears to be derived from English common law that created a permanent disability on a convicted perjurer from testifying at any future court proceeding. It appears to have been codified in the early 1900s. It currently resides as statute in the Courts and Judicial Proceedings Article at § 9-104 with the blanket language: “A person convicted of ‘perjury may not testify. This issue was brought to the attention of the Carroll County Senate Delegation by the Carroll County State’s Attomey’s Office. Their concern stemmed from their inability to pursue certain criminal cases. There are numerous situations in which the testimony of the victim is indispensible to the proceeding, such as in a domestic violence or rape case. Without the testimony by the victim, there is a very distinct possibility that the abuser could continue to harm the victim without fear of repercussion. At the bill hearing, the Public Defender’s Office opposed the bill because it carved out an. isolated repeal for a victim. They stated that it would be unfair to allow victim witness to testify when a witness for the defense would still be subject to the disability of a convicted perjurer to testify.‘The Senate Judicial Proceedings Committee considered this: “What is the modern-day public policy that supports a blanket prohibition against testimony by a witness with a prior conviction for perjury?” The Committee was concerned that this applies not only to criminal proceedings but also to civil actions (are attorneys aware of this and do they use it in domestic relations or personal injury cases?). The Committee also agreed with the Office of Public Defender that a partial repeal of the prohibition would be unjust. ‘There are other similar scenarios under the law where a conviction can occur for a false statement (false statement to a police officer) that does not result in a blanket prohibition against future testimony in a court proceeding. For these reasons, the Senate Judicial Proceedings Committee decided that the current law is an remnant of English common law that does not provide good public policy today and that testimony from a convicted perjurer should be allowed but subject to current rules for attacking the credibility of a witness. Currently, Maryland Rule 5-609 governs impeachment of a witness” testimony by attacking the credibility of the witness. Evidence that the witness has been convicted of a crime must be admitted if elicited from the witness or established by public record during public record examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness’s credibility; and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party, In summary, Senate Bill 673 was significantly amended in the Senate Judicial Proceedings committee to create a total repeal on the prohibition in current law at Courts and Judicial Proceedings Art. § 9-104. Under the amended bill, a convicted perjurer would be allowed to testify in all court proceedings subject to impeachment of the testimony under court rules. Therefore I request a favorable report on Senate Bill 673 — Courts and Judicial Proceedings — Prohibition Against Testimony by Convicted Perjurer — Repeal.