Walker Opposition to Cert Redacted

8/17/2019 Walker Opposition to Cert Redacted

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In the Court of Appeals

of Maryland

Petition # 93

September Term, 2016

BRETT KIMBERLIN,

Petitioner,

v.

AARON J. WALKER, ESQ., ET AL.,

Respondents.

Appeal from the Circuit Court of Montgomery County, Maryland

(Hon. Eric Johnson, Presiding)

ANSWER IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

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

7537 Remington Road

Manassas, Virginia 20109

[email protected]

(703) 216-0455 (No fax)


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INTRODUCTION

The petition for writ of certiorari (“Petition”) should be denied for two reasons:

first, because there was no error below and, second, because of violations of Md. Rule 8-

303(b), particularly by serial misrepresentation of the record below and attempts to skirt

this Court’s limitations on the length of such petitions.

The Petitioner raises three alleged questions. First, he claims that the lower courts

have erred by failing to find that MD. CODE Cts. & Jud. Proc. §9-104 (which prohibits

convicted perjurers like the Petitioner from testifying) is unconstitutional. Second, he

claims that the lower court erred by affirming that in all cases of alleged defamation—

including defamation per se—the plaintiff bears the burden of proving falsity. Third, he

claims that the Court of Special Appeals held that only the testimony of the Petitioner

could have rebutted the allegedly defamatory claims—most obviously that he is a

pedophile.

Each of these can be disposed of quickly. In relation to the claim that §9-104 is

unconstitutional, the Petitioner is appealing a victory and is, therefore, procedurally

barred from pursuing an appeal on that question. In relation to the rule that plaintiffs in

defamation actions must prove falsity, the Petitioner doesn’t argue that this rule should be

overturned: rather, he misstates the law by claiming that this Court had not ruled that “in

all defamation actions, truth is no longer an affirmative defense to be established by the

defendant, but instead the burden of proving falsity rests upon the plaintiff,” Telnikoff v.

Matusevitch, 347 Md. 561, 594 (Md. 1996). Finally, in relation to the alleged ruling of

the Court of Special Appeals, the Petitioner misstates the Court’s ruling. What that court


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actually ruled—that the Petitioner had not submitted sufficient evidence to create a

question for the jury—was correct.

Additionally, the Petitioner has committed serial misrepresentation of the facts and

proceedings below and has attempted to place argumentative material in his Appendices

as a method of skirting this Court’s limitations on length, providing an additional reason

to deny certiorari. For all of these reasons, this Court should deny the Petition and,

indeed, should consider sanctions against the Petitioner for deliberate serial

misrepresentations of fact and other violations of this Court’s rules.

I.

THE PETITIONER IS PROCEDURALLY BARRED FROM CHALLENGING

THE CONSTITUTIONALITY OF MD CODE CTS. & JUD. PROC. §9-104

Perhaps the most absurd element of the Petition is that the Petitioner believes that

the first and most important question justifying a writ of certiorari before this Court

relates to a motion that he won. Specifically, he asks this Court to declare that MD. CODE

Cts. & Jud. Proc. §9-104, which bars convicted perjurers like the Petitioner from

testifying, is unconstitutional. However, the Petitioner filed a motion to allow him to

testify, and it was granted. The Petitioner was told he could testify (R. No. 227-29,

Record Extract D (hereinafter “E.D.”) 11-12), and he chose not to. Therefore, he has no

right to appeal that ruling—he has no defeat on that question to appeal.1

The Petitioner tries to side-step this limitation on the right of appeal by claiming

that although he won the right to testify, he was unfairly surprised by his victory:

1 See, e.g., Mugford v. Mayor , 185 Md. 266, 44 A. 2d 745, 746 (1946) (the court “needs

no authorities to support the proposition that one cannot appeal from a decree wherein the

relief he prays for has been granted”).


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In the instant case, Appellant [sic] repeatedly tried to get pre-trial rulings on

the constitutionality of Rule 9-104 [sic]2 so he could prepare for trial but the

courts [sic] refused to make those rulings or rule on whether he could

testify. If Appellant [sic] had known before trial that he would be allowed

to testify, he would have done so and then had a dozen character witnesses

testify as to his good character in business, personal and family matters.

Petition, p. 8. There are several difficulties with that passage.

First, the claim that the Petitioner repeatedly tried to get pre-trial rulings on the

constitutionality of §9-104 or otherwise sought to secure the ability to testify is false. The

first time the Petitioner tried to do so was when he filed a “Motion to Find Court’s Article

9-104 Unconstitutional or, in the Alternative, not Applicable in this Case” on August 8,

2014, (R. 222) the Friday before the Monday when the trial was to begin—a motion that

was ultimately granted the day before the presentation of the evidence began (R. 227-29).

The Petitioner does not cite any other specific instance when he asked for a ruling that he

could testify, a fact that was devastating to the Court of Special Appeals’ ruling below:

Mr. Kimberlin also contends that the timing of the court’s ruling, whichwas made “literally minutes before testimony was to begin,” left him

“wholly unprepared to take the stand.” But he never raised that complaint at

any stage of the circuit court proceedings, nor did he imply to the trial court

that he suffered any prejudice—he did not ask for a postponement (and we

don’t mean to suggest that he should have been granted one if he had), nor

did he offer any practical reason why he couldn’t prepare his own

testimony for a trial when he had been seeking to assert his right to testify

all along.

In short, his real objection isn’t about the outcome of the circuit court’s decision but

rather about the timing , and the Petitioner has not preserved that objection.3

2 The Petitioner continually forgets that he is challenging a statute, not a rule.3 Indeed, the complaint that he didn’t have enough time to call character witnesses was

raised for the first time in his reply brief in the Court of Special Appeals.


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Second, it is an absurd objection: I wasn’t prepared to win my motion! The

Petitioner is no babe in the woods when it comes to litigation.4 He can be expected to

adjust his trial strategy for unexpected defeats on questions of evidence, as well as

unexpected victories. Particularly on the subject of character witnesses, the Petitioner

does not explain why he couldn’t have them ready to show up in case he won, only that

he didn’t have them ready to show up, most likely because this alleged dozen character

witnesses are probably a figment of his imagination.5

Therefore, the Petitioner is procedurally barred from raising this issue on appeal.

He won the right to testify in spite of §9-104, and one cannot appeal victory. Meanwhile,

4 As Judge Titus wrote about the Petitioner, “The Plaintiff is no stranger to the processes

of this Court.” Kimberlin v. KimberlinUnmasked , Case No. 8:13-cv-02580-RWT, 3-4 (D.

Md., Feb. 28, 2014). In his opinion, Judge Titus went on to list ten different cases he had

participated in the U.S. District Court for the District of Maryland alone. He has filed

more cases in that court since then.5 The claim that the Petitioner has exactly a dozen witnesses—not an odd number but

exactly twelve—is particularly hard to credit when 1) he has never named these alleged

witnesses and 2) apparently none of them could show up to court on short notice. Inrelation to the latter point, even if it is assumed that the Petitioner had a dozen witnesses

lined up to testify on his behalf and he didn’t tell any of them that he would need their

help until he was told he could testify on August 11, 2014—which is incredibly poor

planning on his part—is the Petitioner telling this Court that all twelve of them could not

show the next day when the presentation of evidence began? These are presumably

persons who like the Petitioner, who don’t need a subpoena to come to court on his

behalf—so why didn’t at least one of them show up?

In any case, there is no evidence developed at trial that there was a single person willing

to vouch for the Petitioner’s honesty.

It may seem harsh for this Respondent t conclude that the Petitioner is probably being

dishonest, but this Court will see throughout the remainder of this Opposition that the

Petitioner is in the habit of misstating the truth even after his misstatements are pointed

out to him and even when they can be easily detected. See, e.g., pp. 9-14 (pointing out

that Appendix E repeats falsehoods about the record below that this Respondent had

previously pointed out to the Court of Special Appeals).


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the Petitioner failed to preserve for review his real objection—the timing of the circuit

court’s favorable decision—and, therefore, he cannot raise it for the first time on appeal.

II.

THE PETITIONER HAS MISSTATED THE TRUTH IN AN ATTEMPT TOPERSUADE THIS COURT THAT FALSITY IS PRESUMED IN DEFAMATION

PER SE CASES

The Petitioner argues that in defamation per se cases that falsity is presumed under

Maryland law. However, in order to do so, the Petitioner had to falsely claim that that one

case has not been overturned and had to take another case grossly out of context in order

to imply that a discussion of how the law used to be is a discussion of how the law is

today. In short, he had to misstate the truth about what the law of Maryland says. Most

remarkably, he has made the exact same deceptive argument before the Court of Special

Appeals, and he has been previously corrected by this Respondent on this point, proving

that his deception is knowing and intentional.

First, the Petitioner cites to Wetherby v. Retail Credit , 235 Md. 237, 241 (1964) as

saying that, in defamation per se cases, falsity is presumed and truth must be proven by

the defendant. That was a correct statement of the law in 1964, but that case was

overturned by cases such as Jacron Sales Co. v. Sindorf , 276 Md. 580, 597 (1976), which

stated that

truth is no longer an affirmative defense to be established by the defendant,

but instead the burden of proving falsity rests upon the plaintiff, since,

under this standard, he is already required to establish negligence with

respect to such falsity.

Lest there be any question whether Jacron applied to every case, this Court has stated in

Telnikoff, 347 Md. at 594 (previously cited supra p. 1) that


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

an affirmative defense to be established by the defendant, but instead the

burden of proving falsity rests upon the plaintiff,” 276 Md. at 597, 350

A.2d at 698.

(boldface added). Therefore, Wetherby is no longer good law, and the Petitioner is simply

wrong to say otherwise.

However, it is plain that the Petitioner is not only wrong but also intentionally

misstating the law with another citation. The Petitioner writes that “[i]n Hearst

Corporation v. Hughes, 466 A.2d 486 (Md. 1983), the Court rejected the argument that

per se defamation presumptions should be overruled[.]” Petition, p. 10. He goes on to

deceptively quote from a passage in that opinion seeming to suggest that the presumption

of falsity continues to apply in defamation per se cases.

However, that quotation is taken out of context. Here is the full quotation with the

words he left out in bold:

Under pre-Gertz law, the fact finder in a defamation action predicatedon words actionable per se was permitted to assess general damages for

the presumed harm to reputation. See generally Fennell v. G.A.C.

Finance Corp., supra; Thompson v. Upton, 218 Md. 433, 146 A.2d 880

(1958); Evening News Co. v. Bowie, 154 Md. 604, 141 A. 416 (1928);

Bowie v. Evening News, 148 Md. 569, 129 A. 797 (1925); Kilgour v.

Evening Star Co., 96 Md. 16, 53 A. 716 (1902); Gambrill v. Schooley, 93

Md. 48, 48 A. 730 (1901). One reason was that “[i]n the case of words

or conduct actionable per se, their injurious character is a self-evident

fact of common knowledge of which the court takes judicial notice and

need not be pleaded or proved.” M & S Furniture v. De Bartolo Corp.,

249 Md. 540, 544, 241 A.2d 126, 128 (1968). See also Murnaghan, Ave

Defamation, Atque Vale Libel and Slander , 6 U. of Balt.L.Rev. 27, 35

(1976). Further, at common law, the defamatory statement was viewed to

be presumptively false. Truth was an affirmative defense so that the initial

burden of proving falsity did not rest upon the plaintiff. See Jacron Sales

Co. v. Sindorf , 276 Md. 580, 597, 350 A.2d 688, 698 (1976).


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As this Court can plainly see, the discussion of the presumption of falsity (which applied

on all cases) arose in the context of discussing how the law used to be, before Gertz —that

is Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)—not how the law is today.

Further, the claim that the Hearst court “rejected the argument that per se

defamation presumptions should be overruled” is false. The case only dealt with the

presumption of damages, and it noted the current, modified standard that presumptive

damages were only available if constitutional malice was shown as follows:

Mayo recognizes that, as a matter of Maryland law, the presumption of

harm to reputation still arises from the publication of words actionable perse. A trier of fact is not constitutionally barred from awarding damages

based on that presumption in a constitutional malice case. A trier of fact is

constitutionally barred from awarding damages based on that presumption

in a negligent defamation case.

Hearst , 297 Md. 125-126. Thus, in a defamation per se case, a plaintiff has two options.

First, she can attempt to show constitutional malice—which requires proof of falsity, plus

proof of knowledge or reckless disregard of falsity—and then, upon such proof, enjoy a

presumption of harm and damages. Second, a plaintiff can show that the defendants

negligently published defamatory material—which under Jacron, also requires proof of

falsity. See Jacron, 276 Md. at 597. In either circumstance, however, falsity must be

proven by the plaintiff.

Accordingly, the case law establishes that in Maryland truth is not an affirmative

defense. Instead, in any defamation case, the falsity of the statements must be proven by

the plaintiff. Therefore, the courts below have correctly determined that the Petitioner has

failed to meet his burden of proof in this respect.


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Remarkably, virtually every word in this section starting with the second

paragraph in this section and ending with the paragraph just above this one has been

directly copied and pasted from “Appellee Walker’s Opposition to Appellant’s Motion to

Reconsider and Suggestion for Reconsideration En Banc” filed in the Court of Special

Appeals (with only slight alterations). That is, 1) the Petitioner’s “Motion to Reconsider

and Suggestion for Reconsideration En Banc,”6 before the Court of Special Appeals was

virtually identical to the instant Petition on this topic, 2) this Respondent had previously

pointed out the Petitioner’s false statements in that motion, and 3) the Petitioner chose to

make the same fallacious argument before this Court without modifying or correcting

these false statements. While this doesn’t make the Petitioner any more incorrect about

the law than before, it does render his conduct sanctionable.

III.

THE PETITIONER FALSELY CLAIMS THAT THE COURT OF SPECIAL

APPEALS STATED THAT IT WOULD ONLY HAVE ACCEPTED HIS

TESTIMONY AS PROOF OF FALSITY

Next, the Petitioner resorts to misstating the ruling of the Court of Special Appeals

decision below in an attempt to claim that it incorrectly determined that he had presented

no evidence of falsity. Specifically, on page 11, the Petition states that:

The Court of Special Appeals found that since Appellant [sic] did not

testify, he failed to provide any evidence of falsity. (Appendix A at 16).

This is a gross misrepresentation of what constitutes evidence, and conflicts

with well-established case law regarding what evidence is necessary for

submission to a jury. Moreover, Appellant [sic] presented strong direct,

circumstantial and inferential evidence of falsity[.]

6 Hereinafter “Motion to Reconsider.” A true and correct copy of that motion is attached

as Exhibit A.


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However, that is not what the opinion below held. In the very beginning of the section

addressing the Motion for Judgment, the Court of Special Appeals had relied on this

passage from Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 235 (2005) (internal

citations omitted):

In reviewing the grant of a motion for judgment, we “assume the truth of all

credible evidence on the issue, and all fairly deducible inferences

therefrom, in the light most favorable to the party against whom the motion

is made.” Orwick v. Moldawer , 150 Md. App. 528, 531 (2003).

Consequently, we “may affirm the grant of the motion for judgment only if

. . . we conclude that there was insufficient evidence to create a jury

question.” Wilbur v. Suter , 126 Md. App. 518, 528 (1999).

See Petition, Appendix A, p. 13 (emphasis added). So they explicitly acknowledged that

the Petitioner could have created an issue of fact for the jury by either direct evidence of

falsity or by presenting evidence from which one could fairly deduce falsity. Thus, in

context, when they note that the Petitioner didn’t take the stand, that was only the most

obvious way he had failed to provide evidence of falsity—but it was not the only way he

could have done so. Therefore, the Plaintiff’s claim that the Court of Special Appeals

erred is plainly false.

IV.

THE PETITIONER IMPROPERLY ATTACHES AN ARGUMENTATIVE

APPENDIX THAT FAILS TO ESTABLISH THAT THE LOWER COURT ERRED

BY GRANTING A MOTION FOR JUDGMENT

Turning to the claimed direct and inferential evidence that the Petitioner alleges

that he presented below, he is virtually silent about the nature of that evidence in the body

of his Petition. This is most likely because the Petitioner ran out of room, with the body

of the Petition containing 3,898 words.


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

presenting an “Appendix E” which lists alleged evidence of falsity and included a

narrative arguing what inferences can supposedly be drawn from each piece of evidence.

The fact that the Petitioner was inappropriately using this appendix as a way to skirt the

length limitations—without asking for leave to exceed those limitations as is the ordinary

procedure—is made all the more clear when one examines Exhibit A to this Opposition

and sees that the entirety of Appendix E is a copy-and-paste of the Petitioner’s Motion to

Reconsider in the Court of Special Appeals below, pp. 6-9. In other words, the Petitioner

has now placed those arguments from that Motion to Reconsider in an appendix, adding

an additional 962 words to his Petition without leave of court.

This is reason enough to strike or disregard Appendix E in its entirety. Indeed, it is

reason enough to deny the Petition. Under Md. Rule 8-303(b)(1)(A) the Petitioner was

limited to 3,900 words, and under subsection (c) “[f]ailure to comply with section (b) of

this Rule is a sufficient reason for denying the petition.” However, presuming it is not

dismissed for this reason and this Court chooses to consider those improper arguments,

this Respondent will counter the Petitioner’s copy-and-pasted arguments by copy-and-

pasting his prior arguments in his prior opposition to that Motion to Reconsider (with few

alterations to adapt it to this filing), beginning with the next paragraph.

It is true that in determining whether to grant a motion for judgment, a court

should “assume the truth of all credible evidence on the issue, and all fairly deducible

inferences therefrom, in the light most favorable to the party against whom the motion

[for judgment] is made[,]” Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 235


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(2005). In Appendix E, the Petitioner attempts to claim that the lower courts have

misapplied this rule. However, rather than “fairly deductible inferences” from the

evidence, the Petitioner has tried to assert 1) that there were facts in evidence that were

not supported by the record below or 2) that the facts that were in evidence justified wild

leaps of logic that they did not support. Indeed, in many instances, the Petitioner wants

this Court to infer what it can not presume: that negative statements about him were false

without any evidence of falsity. Accordingly, the Petitioner has failed to show that the

lower courts failed to make any “fairly deducible inference” justifying a reversal of its

decision.

A. The Petitioner Repeatedly Misrepresents the Record Below.

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

contains statements that are either objectively false or unsupported by the record, and it is

necessary for this Respondent to correct the record.

For instance, on Appendix E, p. 1,7 the Petitioner writes that, “Appellant [sic]

introduced dozens of blog posts, tweets and graphics created by Appellees [sic] that made

defamatory statements against Appellant [sic] without any proof therein to prove their

allegations.” That misrepresents what was presented to the court below as demonstrated

by the evidence log created at trial. Further, the only time the Petitioner asked for

testimony supporting any of the allegations, he was provided with a detailed presentation

by Mr. Walker 8 that Judge Johnson cut off for going on too long. See E. D., pp. 96-100.

7 The Plaintiff has failed to paginate Appendix E. Fortunately, there are only three pages.

8 Mr. Walker refers to himself in the third person for stylistic purposes and to de-


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After that long, detailed, and credible discussion of the evidence, the Petitioner stopped

asking for the evidentiary basis of the Respondents’ negative opinions.

On the first page of Appendix E, the Petitioner claims that Mr. Walker said that

the Petitioner had never been arrested, tried, or convicted for any crime related to sexual

assault. As pointed out repeatedly in filings before the Court of Special Appeals, the

Petitioner only asked Mr. Walker about his knowledge in relation to the Petitioner’s

criminal record in relation to sex with underage girls in Indiana, a single state. See

Record Extract D, p. 101. Therefore, it is false to suggest that evidence was put into the

record describing the totality of the Petitioner’s criminal record in relation to sexual

misconduct.

On pages one and two of Appendix E, the Petitioner claims that the criminal

charges filed against him by his own wife were filed “during a mental health crisis” and

that Mr. Walker “helped her to craft” the Application for the Statement of Charges. There

was no evidence presented that Mr. Walker helped her to write that Application, and

there was no evidence presented about the state of Mrs. Kimberlin’s mental health. See

Record Extract D, p. 104. Further, upon information and belief, there is nothing wrong

with Mrs. Kimberlin, and there has never been anything wrong with her.

Further, the Petitioner writes that

When Appellant [sic] repeatedly asked Appellee [sic] Walker under oath if

any official in any federal or Maryland or Virginia state office [sic] or court

ever “bought into” any of his accusations and allegations against Appellant,

Appellee [sic] Walker repeatedly evaded the question.

personalize this case.


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

Petitioner asked if “anybody in an official position”9 believed Mr. Walker, and Mr.

Walker named Los Angeles County Assistant District Attorney Patrick Frey.10

The

Petitioner didn’t like that answer and what is reflected next in the transcript11

is how the

Petitioner ranted and raved.12

The Petitioner badgered Mr. Walker as a witness, Mr.

Walker attempting to answer calmly only to get cut off 13

until Judge Johnson sustained an

objection from defense counsel. There is nothing in the transcript establishing evasion,

only a bewildered defendant dealing with a plaintiff who was out-of-control.

Next, the Petitioner alleges another supposed evasion writing on page three of

Appendix E that “Appellee [sic] Akbar spent five minutes on the stand evading

Appellant’s [sic] question about whether he had used his blog to raise thousands of

dollars based on his narratives about Appellant [sic].” Contrary to the Petitioner’s

assertion, that wasn’t what was asked, and Akbar stated that there was no money raised

related to the Petitioner. See Record Extract D, p. 156, lines 20-21, p. 157, line 9. Since

the question wasn’t asked, the Petitioner necessarily hasn’t established any evasion of it.

Finally, the Petitioner writes on page three of Appendix E that “Appellee [sic]

McCain testified that he was aware that the charges created by Appellee [sic] Walker for

Appellant’s [sic] wife were nolle prossed but [sic] that he never reported that fact on his

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

10 Id. at p. 131, lines 11, 14, and 21-22.

11 Id. at pp. 131-132.

12 “[R]anted and raved” might seem like strong words, but if this Court examines the

audio of the hearing, it will recognize that this is a reasonable characterization of the

Petitioner’s wild behavior.13

E.g. E. D., p. 132, line 6.


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blog or corrected his prior blog posts or tweets.” There are two things wrong with this

passage.

First, there is again no evidence in the transcript that Mr. Walker was involved in

the writing of the Application for Statement of Charges at issue. Indeed, the Petitioner is

inconsistent on the subject. Previously, he said that Mr. Walker had merely “helped her to

craft” it (Appendix E, p.1)—”her” being his wife. Now, the Petitioner says that Mr.

Walker wrote all of it, strongly suggesting that the Petitioner is having difficulty keeping

his story straight.

Second, the transcript doesn’t establish that Defendant McCain didn’t report that

the charges were dismissed on a plea of nolle prosequi. Rather, McCain said he didn’t

remember whether he wrote such a piece and then colorfully disputed the Petitioner’s

claim that being dismissed on a plea of nolle prosequi proved innocence: “Noll[e] pross

doesn’t mean you were falsely accused. I’ve had traffic tickets that were noll[e] pross.

That didn’t mean I wasn’t going 85 miles an hour.” Record Extract D, p. 217.

In the last few copy-and-pasted paragraphs, this Respondent has shown that the

Petitioner has made a large number of false statements in Appendix E. The fact almost

all of this could be copy-and-pasted from a prior document shows that 1) the Petitioner

has made the exact same deceptive claims before, 2) this Respondent has corrected the

Petitioner before, and 3) the Petitioner has chosen to repeat these falsehoods even after he

has been corrected. Therefore, it is reasonable to conclude that the Petitioner has

attempted to convince this Court that certiorari is justified based on his serial

misrepresentations of the record below, and that such misrepresentations were


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intentional. Accordingly, these misstatements cannot support any valid argument

supporting a grant of cert.

B. The Petitioner’s Proposed Inferences From the Evidence that was Actually

Presented are Unjustified.

Likewise, even when the Petitioner is accurately describing the record below (or is

only trivially inaccurate), the evidence doesn’t support the inferences he wishes this

Court to draw.

For instance, the Petitioner believes that his self-described daughter’s testimony

that he never touched her is sufficient to establish that he had never engaged in sexual

relations with any underage girl. See Appendix E, p. 1. In short, he wants this Court to

assume that every pedophile is also an incestuous pedophile. The Petitioner presented no

evidence to support that claim, and it is far from self-evident.

In another instance, the Petitioner states on the first page of Appendix E that

“every blog post [Mr. Walker] wrote about Appellant [sic] portrayed Appellant [sic] in a

negative light.” First, this is trivially wrong,14

but the inference the Petitioner wants to

draw—that Mr. Walker had an agenda to portray him falsely—is not supported by the

testimony. Portraying a person negatively and portraying him or her falsely are two

different concepts. Would one expect most people to write a positive portrayal of Osama

bin Laden or Charles Manson? Would one presume that a piece discussing their activities

that didn’t put them in a positive light was false?

The Petitioner is a convicted terrorist. Kimberlin v. White, 7 F. 3d 527, 528-29 (6th

14 Mr. Walker actually said “I can’t think of the last time I said something that would tend

to put you in a good light.” See Record Extract D, p. 81.


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Cir. 1993) (detailing the Petitioner’s bombing campaign in Speedway, Indiana, which

cost a man his life). He has done some pretty awful things in his life. The Petitioner

seems to think that it is self-evident that (1) he has done some really good things and (2)

that those alleged good acts would be considered newsworthy by every fair-minded

person. Therefore, he believes (3) that if a person who discusses newsworthy events

doesn’t write positive things about him, this Court should assume that that reporter is not

interested in the truth. However, nothing he presented to the jury supports any part of that

three-part syllogism.

Likewise, on page two of Appendix E where the Petitioner discusses the dislike

the Respondents have for the Petitioner, the Petitioner wants this Court to simply assume

that their dislike is groundless.15

However, since Maryland courts do not presume falsity,

a jury cannot be allowed to infer that simply because someone has a negative opinion

about a person that they aren’t telling the truth about that person. Indeed, the usual

inference is that most people rely on evidence before drawing negative conclusions about

someone. Thus, most ordinary people assume that if one person says negative things

about another person, there is some basis for that belief.

Next, the Petitioner seems to think that because Mr. Walker filed one federal suit,

one state suit, and one peace order petition that this proves that they were “false and

malicious.” Appendix E, p. 2. First, the only testimony about the federal suit was that it

15 It is curious that the Petitioner seems to believe that it is ordinary human nature that if

one does not like a person that 1) there is no just cause for that disdain and 2) that one

will do anything, however dishonest, unethical or immoral, to harm the person he or she

dislikes. Mr. Walker disputes that this is the way normal people think or behave.


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was dismissed as moot. Record Extract D, pp. 85-86. Second, when the Petitioner

attempted to present evidence about the reasoning behind the dismissal of the state suit,

the question was objected to, and the objection was sustained. Id. p. 85. There was no

attempt to determine why the Peace Order was denied, and this Court well knows that a

court might refuse to grant relief for any number of reasons other than that it believes that

a petitioner is dishonest or malicious.

Likewise, on page two of Appendix E, the Petitioner asks this Court to hold that a

jury could infer that Mr. Hoge made false charges simply because the charges were

dismissed on a plea of nolle prosequi. Judge Johnson correctly noted that an entry of

nolle prosequi is irrelevant to the ultimate substantive merit of the charges.

On page three of Appendix E, the Petitioner takes Respondent McCain’s

testimony out of context where he discusses jokingly about being “nasty” and noting the

axiom that sex sells, and tries to spin that into proof Mr. McCain falsely creates sex

scandals. First, the Petitioner again assumes that being negative toward another—being

“nasty”—automatically involves falsehoods. However, nothing Mr. McCain said

suggests that he was anything but honest. Further, McCain’s negative opinion of a fellow

journalist is irrelevant as is his negative opinion of the Petitioner’s self-described

daughter’s singing abilities—and again, the Petitioner seems to want this Court to

presume the Respondents are wrong on these points, when there is no presumption of

falsity.

Finally, on page three of Appendix E, the Petitioner insensitively writes that

because his wife was seemingly on good terms with the Petitioner, that this meant the


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jury could infer that any charges that were filed were false. However, any person who has

worked with abused women, as Mr. Walker has,16

knows the sad fact that a victim of

abuse often returns to his or her abuser. See, e.g., State v. Hill , 287 S.C. 398, 339 S.E.2d

121, 122 (S.C. 1985) (discussing how a battered woman often “repeatedly returns to her

abuser”); and Lopez-Umanzor v. Gonzales, 405 F.3d 1049 (9th Cir. 2005) (immigration

court erred by finding it implausible that a victim of abuse would return to her abuser).

Further, a reasonable juror would be more likely to ask “why wasn’t Mrs. Kimberlin here

to testify?”—suggesting she was reluctant to disavow her prior words (given under oath).

Accordingly, in each instance the Petitioner has failed to show that there was any

“fairly deducible inference[,]” Spengler, 163 Md. App. at 235, supporting the conclusion

that the Respondents wrote anything false about the Petitioner. Indeed, he very often asks

this Court to infer what it cannot presume—the falsity of the Respondents’ statements,

while ignoring direct evidence they were telling the truth. Thus, Judge Johnson was

correct when he said that “[t]here’s not one scintilla of evidence in this case that the

statements that were made by these individuals were false” (E.D. 266) and the Petitioner

has presented no justification for the grant of certiorari.

V.

THE PETITIONER MISSTATES THE RECORD BELOW, JUSTIFYING DENIAL

OF THE PETITION

Maryland Rule 8-303(b)(1) states in relevant part that “[t]he petition shall present

accurately, briefly, and clearly whatever is essential to a ready and adequate

16 Although not mentioned in testimony below, Mr. Walker had spent some time working

with abused persons and has witnessed firsthand the sad reality that victims of abuse

often return to their abusers.


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

requires that the Petition contain the essential facts. Together these sections impose a

duty on the Petitioner to truthfully describe what happened below. Meanwhile, as

previously noted, subsection (c) states that “[f]ailure to comply with section (b) of this

Rule is a sufficient reason for denying the petition.”

Therefore, if a petitioner is caught misstating the truth regarding the facts that

were shown below, this Court can deny the petition for that reason alone, and,

unfortunately, that is precisely what has happened here. In the course of the Petition, the

Petitioner has made over fourteen misstatements of fact—either outright falsehoods or

claims that were not supported by the evidence—apart from those already noted in this

Opposition. Those additional misstatements are as follows (the Petitioner’s statements in

boldface):

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

Petitioner/Plaintiff had rested when a motion for judgment was granted. The

Respondents/Defendants had never presented their case—because they didn’t have to.

2. “On the day of the trial, the judge denied Appellant’s [sic] motion to

find Rule 9-104 unconstitutional.” (Petition, p. 1) The falsehood here is that the

Petitioner is pretending that there was a single day of the trial. The decision to allow the

Petitioner to testify was made on the first day. Testimony began on the second.

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

[sic] non-profit that works to promote pluralism, tolerance and progressive values.

Because of Appellant’s work, in 2011, he became the focus of a defamation


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

presented below supporting a single word of that claim.

4. “Aaron Walker, the publisher of the anti-Muslim ‘Everyone Draw

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

“anti-Muslim” website, and he didn’t.

5.

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

for the assault at Suburban Hospital for a contusion to the eye and back pain.”

(Petition, p. 3) The only evidence on the question of whether Mr. Walker assaulted the

Petitioner is Mr. Walker’s testimony and his testimony showed that 1) Mr. Walker only

acted in self-defense from this violent felon and 2) did not harm the Petitioner in doing

so. E.D. 58-59 and 67-73

6.

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

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

a.

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

attributed to him:

i.

August 28, 2013 comments in the Bethesda Gazette.

ii.

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

away from her pedophile husband” in reference to the Petitioner.

iii.

July 31, 2013: “Pedophile Brett Kimberlin Violates a

Domestic Violence Protective Order.”

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

Kimberlin.”


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v.

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

where PedoBrett tends to lose.”

vi.

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

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

b.

The only statements attributed to Mr. Hoge that the Petitioner

admitted into evidence that were made by Mr. Hoge is the statement “The Dread Pedo

Brett Kimberlin” and the fact that Mr. Hoge has a feature on his website called “The

Team Kimberlin Post of the Day” without any evidence about its content. Every other

statement attributed to Mr. Hoge is without evidentiary support in the court below.

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

were admitted into evidence.

d.

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

manage to admit into evidence was the following: “So, we’ve uncovered

#BrettKimberlin’s big secret: he’s a pedophile with other pedophiles around his

children.”

These misstatements of the fact—over fourteen of them—are unlikely to have

been an innocent mistake. Rather, they appear to be part of a concerted effort to obtain

certiorari by a fraud on this Court. Indeed, attached as Exhibit B is a copy of the instant

17 Although the Plaintiff offered no evidence that Mr. Walker made such a statement, in

the interest of full disclosure, Mr. Walker did testify that the Petitioner’s wife, Tetyana

Kimberlin, filed criminal charges based on the Petitioner’s seduction of her in Maryland

when she was fifteen years old (and the Petitioner was in his forties), and that the same

charges accused the Petitioner of attempting to seduce her then-twelve-year-old cousin.

E.D. 105-6.


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Petition, as well as Appendices C and E to that Petition, with every false or unsupported

factual claim blocked out, so this Court can appreciate the full breadth of the attempted

deception. The words “Swiss cheese” come to mind.

Further, this is not the first time this Petitioner had filed a misleading petition for

certiorari before this Court. The same Petitioner had previously filed (among other

lawsuits) two Peace Orders against Mr. Walker, which were dismissed on de novo

appeal. The instant Petitioner filed a petition for a writ of certiorari after he lost one of

those Peace Orders, Kimberlin v. Walker , Petition #148 (September Term, 2012). In that

petition, the instant Petitioner falsely claimed that Judge Johnson18

1) had refused to

allow the Petitioner to call Mr. Walker as a witness and 2) had barred the instant

Petitioner from submitting evidence of alleged harassment. After Mr. Walker pointed out

these falsehoods in that case, that petition for a writ of certiorari was denied—as the

instant Petition should be.

CONCLUSION

In summary, it is neither desirable nor in the public interest for this Court to grant

this Petition. The Petitioner is procedurally barred from challenging MD CODE Cts. &

Jud. Proc. § 9-104. Likewise, there is no need to reaffirm what this Court has already

ruled—that in all cases involving defamation, the plaintiff carries the burden of proving

falsity. Further, the Court of Special Appeals did not rule that only his testimony could

have created an issue for the jury and the Petitioner has presented no reason why this

18 This is the same Judge Eric Johnson that presided in this case. Since then, Judge

Johnson has retired as appears to be required under Maryland Law for judges who have

reached the age of seventy.


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Court should revisit the evidentiary issues already addressed by two Maryland courts.

Finally, to grant certiorari to this Petitioner would reward him for an attempted fraud on

this Court and introduce a needless element of chaos before this tribunal. For all of these

reasons, the Petition should be denied.

Friday, April 29, 2016 Respectfully submitted,

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

P.O. Box 3075

Manassas, Virginia 20108

Phone: (703) 216-0455

(no fax)

[email protected]

CERTIFICATION OF WORD COUNT AND COMPLIANCE WITH RULE 8-112

1.

This brief contains 6,725 words, excluding the parts of the brief exempted

from the word count by Rule 8-503. However, there does not appear to be any limitation

on the length of answers to petitions for writ of certiorari.

2.

This brief complies with the font, spacing, and type size requirements

stated in Rule 8-112. Specifically this document was typed in Times New Roman, 13-

point font.


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CERTIFICATE OF SERVICE

I certify that on Thursday, April 14, 2016, I served copies of this document on the

Mr. Kimberlin, at 8100 Beech Tree Road, Bethesda, Maryland 20817, via U. S. Mail, and

on the remaining respondents by email, by their consent.


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EXHIBIT A: The Petitioner’s “Motion to Reconsider and Suggestion for Reconsideration En Banc”

filed in the Court of Special Appeals

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


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EXHIBIT B: The cover page, body, and Appendices C and D of the petition for writ of certiorari, with

every factual assertion unsupported by the record blocked out


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IN THE COURT OF APPEALS

OF MARYLAND

BRETT KIMBERLIN,

Petitioner,

v. Petition # 93,

September Term, 2016

AARON J. WALKER, ESQ., ET AL,

Respondents

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

Upon consideration of the Mr. Kimberlin’s petition for writ of certiorari,

Respondent Walker’s opposition thereto, and any other filing in support or opposition

thereto, it is this day of , 201 , hereby

ORDERED the petition for writ of certiorari is hereby DENIED.

Documents

Walker Opposition to Cert Redacted