IN THE COURT OF APPEALS OF MARYLAND SEPTEMBER TERM, 2015 Petition Docket No, Brett Kimberlin, Plaintiff/Appellant v. Aaron Walker, et al., Defendants/Appellees On Petition for Writ of Certiorari from The Maryland Court of Special Appeals PETITION FOR WRIT OF CERTIORARI Brett Kimberlin Pro Se Bethesda, MD 20817 (301) 3205921PROCEEDINGS BELOW QUESTIONS PRESENTED FOR REVIEW PERTINENT CONSTITUTIONAL PROVISIONS AND STATUTES STATEMENT OF THE FACTS TABLE OF CONTENTS ww we REASONS FOR GRANTING THE WRIT il. THE FAILURE OF THE LOWER COURTS TO FIND COURTS ARTICLE 9-104 UNCONSTITUTIONAL, ‘WHICH PROHIBITS ANYONE CONVICTED OF PERJURY FROM TESTIFYING IN ANY MARYLAND COURT, CONSTITUTES A VIOLATION OF APPELLANT'S FIRST AMENDMENT’S GUARANTEE TO MEANINGFUL ACCESS TO THE COURTS, FIFTH AMENDMENT’S DUE PROCESS CLAUSE, FOURTEENTH AMENDMENT’S EQUAL PROTECTION, UNDER BOTH THE UNITED STATES AND MARYLAND CONSTITUTIONS, AND OTHER ARTICLES OF THE UNITED STATES AND MARYLAND CONSTITUTIONS 6 THE LOWER COURTS’ FINDING THAT THERE IS NO PRESUMPTION OF FALSITY IN CASES OF PER SE DEFAMATION CONFLICTS WITH WETHERBY V. RETAIL CREDIT COMPANY, 235 A.2D 344 (1964), COMMON LAW AND LONG STANDING MARYLAND PRACTICE 9 THE COURT OF SPECIAL APPEALS’ FINDING THAT ONLY DIRECT TESTIMONY FROM A DEFAMED PARTY CAN SATISFY THE ELEMENT OF FALSITY IN DEFAMATION AND FALSE LIGHT CASES CONFLICTS WITH WELL ESTABLISHED CASES FROM THIS COURT THAT ANY DIRECT, CIRCUMSTANTIAL OR INFERENTIAL EVIDENCE IS ENOUGH TO SUBMIT THE CASE TO THE JURY iCONCLUSION CERTIFICATE OF SERVICE TABLE OF CITATIONS Cases ‘American Stores v. Byrd, 181 A2d 333 (Md. 1962) Bochan v. La Fontaine, 68 F. Supp. 2d 692 (D. ED Va. 1999) Domchick v. Greenbelt Services, 200 Md. 36 (1952) Dorszynski v. United States, 418 U.S. 424 (1974) Faretta v. California, 422 U.S. 806 (1975) 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) Longebehn y. Schoenrock, 727 NW 2d 153 (Minn, CA, 2007) Martens Chevrolet v. Seey, 439 A.2d 534 (Md, 1982) Miles v. Ramsey, 31 F. Supp. 2d 869 (D. Co. 1998) Moore v. State, 73 Md. App. 36 (1987) Orwick v. Moldawer, 150 Md. App. 528 (2003) Plitt v. Greenberg, 242 Md. 359 (1966) Robinson v. State, 315 Md. 309 (1989) Rock v. Arkansas, 483 U.S. 44 (1987) Rosen v. United States, 245 U.S. 467 (1918) Shaprio v. Massengill, 105 Md. App 743 (1995) Smith v. Danielezyk, 928 A2d 795(Md. 2007) ‘Smith v. Miller, 71 Md. App. 273 (1987) Wetherby v. Retail Credit Company, 235 Md. 237 (1964) Washington v. Texas, 388 U.S. 14 (1967) Statutes and Rules and Other Authorities Ma. Rule 9-104 Md. Rule 2-519(b) Md. Rule 5-601 Md. Rule 5-609(b) Md. Rule 5-608 Md. Rute 9-115 Md. Code 3-1503(b)(1) W il 10 10 10 10 I 12 12 12 12 1,6,7 6 u 12 29 passim 2 02 00 90 00Black’s Law Dictionary 5“ Ed, West 1970 10 Poe’s Pleading and Practice, Tiffany Edition 9 West’s Marvland Law Encvelovedia (2014) 10 APPENDIX A-Decision of the Court of Special Appeals B-Denial of Motion for Reconsideration and Mandate C-Examples of Defamatory Articles and Tweets D-Examples of Testimony of the Appellees E-Examples of Direct, Circumstantial and Inferential Evidence of Falsity F-Docket Entry of Judgment of Circuit Court iiiPROCEEDINGS BELOW Appellant Brett Kimberlin filed a complaint for damages against Appellees in Montgomery County Circuit Court, alleging defamation and false light. Plaintiff proceeded to a jury trial. After a full presentation of the evidence, the trial court, Judge Fric Johnson presiding, directed a verdict on both counts. Appellant filed an appeal to the Maryland Court of Special Appeals, September Term 2014-#1553, 2099 and September Term 2015-#365, which affirmed the lower court on March 2, 2016, Appendix A. The lower court denied Plaintiff's Motion to Reconsider and issued the mandate on March 31, 2016. See Appendix B. This petition presents three important questions: I. Maryland is the only state in the country that has a rule — Courts Article Rule 9-104 -- that prohibits a convicted perjurer from ever testifying in any civil o criminal case. This includes plaintiffs, defendants, victims, witnesses and domestic abuse complainants. The Supreme Court in Rock v. Arkansas, 483 US 44 (1987) held that is was unconstitutional for a state law or rule or court ion to deprive a criminal defendant of his right to testify. Similar due process considerations apply to civil cases, and to victims of crimes. In the instant case, the Appellees, throughout every pretrial proceeding, invoked Rule 9-104 against Appellant who had been convicted of perjury as a teenager. On the day of trial, the judge denied Appellant’s motion to find Rule 9- 104 unconstitutional and ruled that Appellant could testify. Appellant was prejudiced because he was treated differently than other civil litigants by being unable to effectively prepare for trial or even subpoena or prepare character witnesses, who can only testify affer a plaintiff testifies. The Court of Special Appeals refused to address this issue because the trial judge ruled that Appellant could testify. This Court should find that using an unconstitutional rule to depriveAppellant of due process and equal protection throughout the entire lead up to trial prejudiced Appellant and deprived him of a fair trial, Il. Appellant argued at trial and on appeal that the Appellees’ libelous statements that Appellant is a pedophile, rapist and sex abuser constituted per se defamation, which under Maryland law creates a presumption of falsity. The lower courts disagreed stating that there is no presumption of falsity in per se ‘cases but rather that Appellant is required to prove falsity. This conflicts with one hundred fifty years of precedent in Maryland, which holds “{wJhen one publishes matter which libels another per se, as in this case, there arises a presumption of the falsity of the allegation....” Weatherby v. Retail Credit Company, 235 Md. 237, 241 (1964). This Court should resolve the conflict and settle the confusion surrounding the burden of proof in per se defamation cases as it relates to the presumption of falsity. IIL The lower court found that the only way Appellant could prove falsity was if he himself testified. The court rejected all of the other direct, circumstantial and inferential evidence of falsity and thereafter affirmed the trial court's removal of the case from the jury’s consideration. This conflicts with long standing precedent from this Court that holds that (1) a jury can consider any credible evidence and make inferences therefrom, including circumstantial evidence and a witness’ demeanor, and (2) a judge must allow a jury to decide the case if there is even the slightest evidence in the plaintiff's favor.QUESTIONS PRESENTED FOR REVIEW IL 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 I. WHETHER PER SE DEFAMATION STILL CREATES A PRESUMPTION OF FALSITY UNDER WETHERBY V. RETAIL CREDIT COMPANY, 235 A.2D 344 (1964), COMMON LAW AND MARYLAND PRACTICE AND PROCEDURE II. WHETHER THE COURT OF SPECIAL APPEALS ERRED IN FINDING THAT ONLY DIRECT TESTIMONY FROM APPELLANT CAN SATISFY THE ELEMENT OF FALSITY IN ‘THIS DEFAMATION AND FALSE LIGHT CASE PERTINENT CONSTITUTIONAL PROVISIONS AND STATUTES Court’s Article 9-104 states: “A person convicted of perjury may not testify.” STATEMENT OF THE FACTS Appellant Brett Kimberlin is the director of a Maryland based 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 campaign by a group of conservative extremists. Appellee Aaron Walker, the publisher of the anti-Muslim “Everyone Draw Mohammed” blog, was outraged when Appellant exposed him. He came uninvited to a circuit court hearing, assaulted Appellant and took his iPad.Appellant was treated for the assault at Suburban Hospital for a contusion to the eye and back pain. After Appellant Walker's employer found out about his activities as publisher of the Muslim hate blog, the employer fired him. 75-6 (All page numbers in this brief refer to the trial transcript page numbers in the Court of Special Appeals’ Record Extract), Appellant Walker blamed Appellant for his misfortunes, and rallied a group of right wing extremists to attack the reputation and employment of Appellant through a series of campaigns based on false narratives including an online campaign called “Everybody Blog About Brett Kimberlin.” From May 2012 through September 2013, Appellees published thousands of blog posts, Twitter tweets and other forms of social media falsely alleging that Appellant is a pedophile, rapist, and sex abuser. They repeatedly published an online graphic of a “Pedo Bear” (connoting an evil child sex predator) with ‘Appellant's photo superimposed thereon. They testified that they published these statements. See Appendix C and D for articles, tweets and testimony of the four Appellees. Appellees’ Invocation of Court’s Article 9-104 In 1972, when Appellant was a teenager, he was found guilty of perjury. ‘Appellees discovered Appellant's perjury conviction and invoked Court’s Article 9-104, which states simply and categorically: “A person convicted of perjury may Appellees then, at every pre-trial hearing, moved several different judges to prohibit Appellant from testifying, which several did. On the first day of trial, Appellees again asked the judge to prohibit Appellant from testifying and Appellant again 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, Appellant was wholly unprepared to take the stand or call character witnesses.The Trial ‘The jury was selected on day one. On day two, Appellant pro se 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. ‘The Testimony of Appellant's Daughter Appellant calied his 15-year old daughter took the stand who testified that Appellant never exhibited any evidence of pedophilia, and never harmed her in any way. 238. ‘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. See Appendix D for pertinent testimony of Appellees. Appellees Move For Directed Verdicts At the close of testimony, Appellees moved for a directed verdict arguing that Appellant failed to show that they defamed him or portrayed him in a false light. 242-3. Appellant responded that under Shaprio v. Massengill, 105 Md. ‘App 743 (1995), accusing someone of a crime or sexual misconduct constitutes per se defamation where falsity is presumed. 244, 248 He said that the ‘Appellees called him a pedophile, said he engaged in sex abuse, published his face superimposed on a Pedo bear graphic, and repeated this “hundreds of times if not thousands.” 245 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's Ruling Directing Verdicts In Favor Of Appellees The trial judge granted the Appellees’ motion for directed verdict. 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 . that they were false.” ‘The Court of Special Appeals affirmed, finding (1) that since Appellant did "There was no testimony not testify, he could not challenge the constitutionality of Rule 9-104, (2) per se defamation requires proof of falsity rather than a presumption of falsity, and (3) falsity could only be proven by Appellant's direct testimony, and since Appellant did not testify, the trial court was correct in directing a verdict in favor of the Appellees. See Appendix A for a Copy of the Court of Special Appeals opinion. ARGUMENT I COURTS AND JUDICIAL PROCEEDINGS 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 9-104 states: “A person convicted of perjury may not testi 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. Rule 9-104 is Unconstitutional and Conflicts With Many Other Statutes and Rules The Supreme Court in Rock. Arkansas, 483 US 44 (1987) held that a state law of 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 (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 heard and to offer testimony . See also Washington v. Texas, 388 U. S. 14 (1967), invalidating a rule that prohibited codefendants from testifying on each others behalf, even through it was enacted to protect against perjury. This Court has applied Rock in Jordan v, State, 591 A.2d 875 (Md. 1991) (the fundamental constitutional right of a criminal defendant to testify in his own defense is deeply entrenched in our modem 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. Ifa 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 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 artived 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 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(b1) (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, 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. If Appellant had known before trial that he would be allowed to testify, he would have done so and then had a dozen witnesses testify as to his good character in business, personal and family matters, as well as truthfulness. Under Maryland Rule 5-608, a character witness can testify after a witmess, including a plaintiff, has been attacked as untruthful. (“Thus, all witnesses, including criminal defendants, may be rehabilitated with their good character for truthfulness after their character for truthfulness has been attacked.”) Courts and Judicial Procedure Rule 9-115 states that character witnesses cannot be excluded from giving testimony in a civil jury trial. Martens Chevrolet v. Seney, 439 A.2d 534 (Md. 1982). But in the instant case, Appellant did not know until the day of trial whether he could testify let alone whether character witnesses could testify. In short, Appellant was unconstitutionally denied meaningful access to the courts, due process and treated differently than other civil litigants, and this prejudiced Appellant. Therefore, this Court should find that Rule 9-104 is unconstitutional and that Appellant was prejudiced in this case by its application.qq THE COURT OF SPECIAL APPEALS ERRED IN FINDING THAT THERE IS NO PRESUMPTION OF FALSITY IN PER SE DEFAMATION CASES: The Court of Special Appeals’ Decision Conflicts With Weatherby v. Retail Credit Company, 235 A.2d 344 (1964) And Its Progeny This lower court erroneously held that in a case of per se defamation, presumptions do not pertain to falsity but only to damages: This distinction goes not to the truth or falsity of a statement—it goes to damages. That is, a plaintiff is relieved of proving the injurious character of a statement if it is deemed defamation per se. But if the statements here were deemed defamation per se (and again, we aren’t holding that they should or shouldn’t be), Mr. Kimberlin still has to prove that they were false as well—.... [Opinion at 16] At trial and on appeal, Appellant argued that in cases of per se defamation, as in the instant case where Appellees published libelous articles calling Appellant a pedophile who had committed rape and child sex abuse, there is a presumption of falsity and malice that can only be rebutted by the defendants. Both the trial judge and the Court of Special Appeals failed to follow well-established Maryland law that holds exactly, word for word, what Appellant argued and what formulated his decisions in the trial court. In Weatherby v, Retail Credit Company, 235 Md. 237 (1964), this Court made clear that in cases of per se libel, there is a presumption of falsity: When one publishes matter which libels another per se, as in this case, there arises a presumption of the falsity of the allegation and a presumption of malice in publishing it. Poe’s Pleading and Practice, Tiffany Edition, Vol. 1, sec. 180, states that in cases of per se defamation in Maryland, the plaintiff need only prove the publishing of the utterance, “for upon such proof the law assumes both the falsehood of the charge and the malice of the defendant in making it.” West's Maryland LawEncyclopedia, Sec. 48 (2014), states that when “one publishes matter which is defamatory per se, there arises a presumption of the falsity of the allegation and a presumption of malice in publishing it” The footnote to this statement cites Wetherby. Accord Domchick v. Greenbelt Services, 200 Md. 36, 45 (1952). The Maryland Court of Appeals has not modified, altered or overruled Wetherby, and in fact the Court has continued to adhere to the common law presumption of falsity in cases of per se defamation. In Hearst Corporation v. Hughes, 466 A.2d 486 (Md, 1983), the Court rejected the argument that per se defamation presumptions should be overruled: 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. (emphasis added). Publishing statements calling Appellant a pedophile, rapist and abuser, saying he engaged in pedophilia, is considered per se defamation according to well- established state and federal case law. Black’s Law Dictionary defines pedophilia as, inter alia, “An adult's act of child molestation.... “ (emphasis added). 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: 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. ... Furthermore, respondent has cited no case, and our research has revealed none, holding 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); 10Accusing an individual of committing a crime is an example of a statement that is defamatory per se. See, e.g, American Stores v. Byrd, 181 A2d 333 (Md. 1962) (if statement made in ordinary lay language that would impute a crime or guilt, sufficient to prove libel); 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). By calling Appellant a pedophile who engaged in rape and sex abuse, Appellees were imputing an act of illegal sexual misconduct (child rape and molestation) to Appellant. Regardless of the context in which the word is used, “pedophile” will not have an innocent meaning. 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 Intemet chat rooms that plaintiff was pedophile, constitutes prima facie defamation). In the instant case, the Appellees’ use of the words pedophile, pedophilia, sex abuse and rape in their many published statements and utterances were intentional accusations of crimes—i.e., sex with children. In conclusion, this Court should grant this writ in order to clarify that Maryland’s long standing presumption of falsity in per se defamation cases is still the law of Maryland. mm THE COURT OF SPECIAL APPEALS MISAPPLIED THE LAW REGARDING THE SUFFICIENCY OF EVIDENCE NECESSARY FOR SUBMISSION OF THE CASE TO A JURY The Court of Special Appeals found that since Appellant did not testify, he failed to provide any evidence of falsity. (Appendix A at 16). This is a gross misinterpretation of what constitutes evidence, and conflicts with well-established case law regarding what evidence is necessary for submission to a jury. Moreover, Appellant presented strong direct, circumstantial and inferential Wevidence of falsity, notwithstanding the presumption of falsity noted in Argument H above. See Appendix E. As such, the case should have been submitted to the jury. Evidence in a civil trial can be direct or circumstantial, and a jury is allowed to draw inferences from the evidence, testimony and demeanor of the trial witnesses. ‘As the Court noted in Robinson v, State, 315 Md. 309, 318(1989), There is nothing mysterious about the use of inferences in the fact-finding process. Jurors routinely apply their common sense, powers of logic, and accumulated experiences in life to arrive at conclusions from demonstrated sets of facts. See also Moore v. State, 73 Md.App.36, 45 (1987) (“There are few facts, including even ultimate facts, that cannot be established by inference.") ‘A coutt, in reviewing the grant of a motion for judgment, assumes “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). See Smith v. Miller, 71 Md. App. 273, 280, (1987). (“Neither the trial court nor this Court is permitted to substitute its evaluation of that evidence for that of the jury”) Clearly, the Court of Appeals misapplied the law by finding that since Appellant did not testify as to falsity, he failed to present any evidence of falsity. However, any other direct, circumstantial or inferential evidence can prove any element of a civil claim, including falsity. See Maryland Rule 2-519(b), (“...the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.”) In ruling upon a motion for a directed verdict, a trial court must resolve all evidentiary conflicts and inferences that may naturally and legitimately be deduced therefrom in favor of the plaintif’s right to recover. Plitt v. Greenberg, 242 Md. 359 (1966). (“This Court has always maintained that if there be any legally relevant and competent evidence, however 12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.”). Appellant's daughter's direct testimony was strong, direct “credible evidence” of falsity, and all the other inferential evidence presented by Appellant was legally relevant and competent evidence that a rational juror could infer a fact in issue -- that the Appellees defamed Appellant and portrayed him in false light. Clearly, it was error for the Court of Appeals to hold that only Appellant’s direct testimony would prove the element of falsity. This Court should grant the writ on this issue to clarify that direct testimony from a plaintiff is not required to prove the element of falsity. CONCLUSION The Court should grant this writ to (1) resolve conflicts created by the decision below, (2) settle confusion regarding the presumption of falsity in per se defamation cases, (3) decide the important question regarding the constitutionality of Rule 9-104 which deprives an entire class of people from testifying in Maryland Courts, and (4) correct a decision that has departed far from accepted and usual Court of Appeals decisions. Respect! ‘Submitted, Certificate of Service | certify that I mailed a copy of this petition to 4gtymmey Patrick Ostronie and Appellee Aaron Walker this 14" day of April, 2016, Brett Kimt Bethesda, MD 20817 13STATEMENT AS TO TYPEFACE: The font used in this brief is Times New Roman with 13-point type and proportional spacing. The number of words in the body of the petition is 3898.APPENDIX A-Decision of the Court of Special Appeals B-Denial of Motion for Reconsideration and Mandate C-Examples of Defamatory Articles and Tweets D-Examples of Testimony of the Appellees E-Examples of Direct, Circumstantial and Inferential Evidence of Falsity F-Docket Entry of Judgment of Circuit CourtAPPENDIX CAPPENDIX C Some of the Articles Published by Appellees 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 rape ‘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 ‘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 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 does. Everyone who assists Brett Kimberlin is an accomplice to evil, and silence about Brett Kimberlin’s evil is a form of assistance. Ali Akbar-Twitter-@ali August 13, 2013-Twitter-We’re about to raise some money for an abused immigrant trying to escape #BrettKimberlin. August 9, 2013-Twitter-pointed out Brett Kimberlin’s pedophilia 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!APPENDIX DAPPENDIX D Some of the Pertinent Testimony of the Four Appellees Aaron Walker Q. Did you later tell people that you were terminated [from employment] 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 Q. Okay, you have a Twitter account, right? A. Ubshub. .. Q. How many approximately tweets have you made about me in the past 2 Ye 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, I don’t know. 79 ... Q. Have you ever called me a pedophile? ‘A. Lhave 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 'm a pedophile? ‘A. [don’t know. Q. One? 80 ‘A. Maybe six, I don’t know. @. 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 five tweets or are they all negative? ... Lean’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? (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. I 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 occaisions, am | 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. Well, I did a word search for your name on my blog a few days ago and it came up 783 times. ... Tweets probably twice that .... 134 Q.... You've called me a pedophile on your blog, haven’t you? A. [’ve expressed the opinion that I believe you might be. Q And you've used the Pedo bear meme with my picture interspersed with it?‘A. 1 found it on the internet and as a bit of news reproduced fit]. 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 pethaps 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 I 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. ... '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. I don't recall what I wrote on that date... Robert Stacy McCain 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 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 traffic 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, I'm pretty sure I posted daily, so that would have been 42. Q. So if were to show you 782 tweets that you've had — A. I 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 I 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 about Appellant by Appellees Hoge, Walker and Akbar. 210 He again said that he called Appellant “evil,” 195. He said that the Washington Past 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 word “pedophile” to cast Appellant as a pedophile. 208-9.APPENDIX EAPPENDIX E Direct, Circumstantial and Inferential Evidence of Falsity + Appellant's daughter testified as follows: Q. Have you ever seen any evidence that your dad’s a pedop! A.No. Q.Notat all? A.No. My dad hasn’t even, my dad when he’s mad doesn't even yell at me. He has never touched me in anyway (sic). He has never touched anyone in my family harmfully. (Tr. 238] Appellant's 15-year old daughter's testimony constituted direct evidence that Appellees’ statements were false. The jury was entitled to make a determination based on testimony of the daughter who lived with Appellant her entire life, whether she was more believable than four men who hated Appellant and never met him outside of a courthouse. ‘+ Appellant introduced dozens of blog posts, tweets and graphics created by Appellees that made defamatory statements against Appellant without any proof therein to prove their allegations. They were simply bald accusations. The jury could infer from this direct evidence that these baseless statements made by Appellees were false. + Appellee Walker testified that to the best of his knowledge Appellant had never been arrested, tried, convicted or sentenced for any crime related to sexual assault. (Tr, 121). The jury had a right to infer from this direct evidence that Appellees’ defamatory statements were false. + Appellee Walker testified that every blog post he wrote about Appellant portrayed Appellant in a negative light. (Tr. 81) The jury could infer by this that that these blogs posts were false and that he had a motive and agenda to portray Appellant in a false light. + Appellee Walker testified that the charges filed by Appellant's wife during a mental health crisis which Appellee Walker helped her craft were dismissed and nolle prossed by the State’s Attorneys Office. (Tr. 111 and 119). The jury could inferfrom this that the charges and allegations were false, and were crafted by Appellee Walker in order to scandalize Appeliant. + Appelice Walker testified that he has sued Appellant many times in federal and state courts, filed criminal charges and peace orders against him, and that all of those suits were dismissed and denied. (Tr. 84-87) The jury could infer that these legal actions against Appellant were unsuccessful because they were false and malicious, and the judges and prosecutors did not believe them, and that those inferences could lead the jury to believe that the statements about pedophilia and sex abuse were also false. + When all four Appellees testified before the jury, they exhibited extreme hatred, ill will, spite, scorn, and contempt for Appellant and Appellees Walker and Hoge repeatedly admitted posting graphics of Appellant wearing a PedoBear costume (Tr. 92, and 137) called him “vile,” (Tr. 136), tried to destroy his employer (Tr. 129), tried to have Appellant “arrested,” (Tr. 130, 145), and Appellant McCain called Appellant “the epitome of evil.” (Tr 174-75) This type of evidence and the spiteful demeanor of the Appellees during their testimony could be considered by a jury to find that Appellees were not telling truth about Appellant. + When Appellant repeatedly asked Appellee Walker under oath if any official in any federal or Maryland or Virginia state office or court ever “bought into” any of his accusations and allegations against Appellant, Appellee Walker repeatedly evaded the question. (Tr. 130—33). The jury could infer from this that Appellee Walker did not want to answer because he would have to admit that no one in any official position ever believed the allegations and therefore that Appellee Walker ‘was making false statements against Appellant. + Appellee Hoge testified that he “accused [Appellant] of crimes that [he has] never been convicted of...” (Tr. 147) and filed criminal charges against Appellant that have all been nolle prossed. (Tr. 148). The jury could infer from this testimony that Appellee Hoge filed false charges and therefore that his defamatory statements against Appellant were also false.‘© Appellee Akbar spent five minutes on the stand evading Appellant's question about whether he had used his blog to raise thousands of dollars based on his narratives about Appellant. (Tr. 153-158). The jury could infer from his demeanor and evasiveness that he was not truthful and therefore that he made false statements about Appellant. + Appellee McCain testified that his blog is “as nasty” as it wants to be and that if he is “going to cut a man, eviscerate him.” (Tr. 165-66). He testified that number 5 on his list of ways to get a million website hits is to write about sex. “Sex sells.” (167-68) The jury could infer from this testimony that he does not play fair in his writings, and that he creates sex scandals to increase his readership. These inferences could lead the jury to believe that he would create false sex narratives about Appellant. + Appellee McCain wrote that he attacked Appellant's 15-year old daughter and a Washington Post reporter who wrote a positive article about her music career, calling the reporter “evil” and saying the daughter could not sing, (Tr. 196-98). The jury could infer from this that if Appellee McCain will make false statements against a national reporter and a 15-year old girl, he will say false things about Appellant. + Appellee McCain testified that he was aware that the charges created by Appellee Walker for Appellant's wife were nolle prossed but that he never reported that fact on his blog or corrected his prior blog posts and tweets. (Tr. 217). The jury could infer from this that Appellee McCain was not interested in the truth of the matter and therefore that his statements were false. ‘© Appellant's daughter testified when asked where her mother was that she was home packing for the family vacation they were all leaving on the next morning. (Tr. 230). The jury could infer from this testimony that the statements made by Appellees regarding rape and sexual assault were false.