I am amused and, frankly, disappointed in the digital pissing matches in which conservative bloggers are engaging on Twitter with convicted bomber and perjurer Brett Kimberlin and his anonymous surrogates. Honestly, such 140-character volleys serve no purpose but to suck the productivity out of every waking moment and promote a higher level of stress that just isn’t good for you.
In an effort to direct my efforts in a more productive direction, I have sent the following letter to Montgomery County (MD) administrative judge John W. Debelius whom, I assume, is responsible for the oversight of retired judge Cornelius Vaughey. As a judge in retirement, Vaughey was likely called in for Aaron Walker’s case to cover for an active judge on vacation or to assist an overloaded court system. I am not familiar with the Maryland courts, but Debelius is probably responsible for scheduling Vaughey to hear cases.
Friday, June 08, 2012
John W. Debelius III, Administrative Judge
50 Maryland Avenue, Rockville, MD 20850
Thank you for considering this request that you review the conduct of retired Judge Cornelius Vaughey in the case of Brett Kimberlin v. Aaron Walker (Montgomery Co. District Court, Criminal Division, Case #5D00279004). I believe that Judge Vaughey’s ignorance of the Internet and online discourse, and his willful disregard for well-established legal precedence regarding free speech resulted in the improper arrest and incarceration of the defendant in this case on May 29, 2012.
Briefly, Defendant Walker, an attorney, offered limited assistance to an individual who was being sued by Complainant Kimberlin in an unrelated case (Kimberlin v. Allen, #339254v). The Defendant subsequently published certain facts about Complainant Kimberlin, a public figure and convicted domestic bomber, at the Defendant’s web site, and suggested that Kimberlin should be charged with perjury in the Allen case. At the time, Walker was writing anonymously under the name “Aaron Worthing.”
Despite the fact that Walker’s involvement in the Allen case was minimal and had ended, Kimberlin used motions in that case to identify Walker. Kimberlin then filed for a peace order against Walker, claiming that Walker’s writings amounted to stalking and harassment. Kimberlin also sought criminal prosecution of Walker for an alleged assault outside of a Montgomery County courtroom; an assault that courthouse video proved never occurred.
Based on Kimberlin’s now-disproven testimony, the peace order was allowed to continue to the May 29 hearing. Two days earlier, however, Kimberlin had sworn out an arrest warrant for Walker, alleging that Walker had violated the peace order. Walker was arrested at the conclusion of the hearing before Judge Vaughey.
I have reviewed the transcripts and audio recordings of the May 29 hearing. I was appalled not only by Judge Vaughey’s lack of knowledge of the Internet, email, blogging, etc. but by his willful disregard for Brandenburg v. Ohio, the seminal U.S. Supreme Court case on inciting violent speech. When Walker cited the case, Vaughey replied, “Forget `Bradenburg` [sic]. Let’s go by `Vaughey` right now.”
Throughout the hearing, Vaughey was rude and dismissive of Walker, who represented himself. At least twice, Vaughey called Walker “sport.” At one point, he questioned Walker’s competence by asking if he had any clients. Later, he questioned Walker’s education and threatened him with incarceration for making a valid objection:
“THE COURT: Keep it up, I got a spot for you in the Courthouse.”
Throughout the hearing Kimberlin, a convicted perjurer, made numerous claims upon which Vaughey apparently based his decision. At no point did Vaughey require Kimberlin to present any evidence to support his charges. Had Vaughey made even a token attempt to follow basic rules of evidence, Kimberlin’s statements could have easily been shown to be false. However, on numerous occasions Judge Vaughey interrupted Walker, preventing him from challenging Kimberlin’s claims or presenting his own evidence.
The most alarming aspect of Vaughey’s hearing was the judge’s disregard for Brandenburg in favor of a standard of free speech of Vaughey’s own making. From the transcript:
WALKER: But it is my right under the First Amendment to talk about what this man did to me. It is my right to tell the world what he did to me. That — Galloway v. State made it very specific on harassment–
THE COURT: –Within reason, my friend. Within reason. [emphasis added]
WALKER: Within reason?
THE COURT: Within reason.
WALKER: I have had a crime committed against me. What is unreasonable about seeking justice?
THE COURT: You know, I shouldn’t say this, but I think you’ve got it twisted. The one who decides to prosecute the crimes is the government–
WALKER: –Of course–
THE COURT: –and only the government, and not you.
WALKER: Of course, Your Honor.
THE COURT: And you’re doing this, I think, under a guise — under this new banner of, “I’ve got the right to do.” You can’t. You can’t. Suppose you didn’t like a girl and you wanted to talk about her chastity. He feels the same way. He feels violated. And [inaudible] you have to look at the reasonableness between the two of you on the content. That’s why said, “Where’s this going?”
Vaughey then proceeded to make Walker and his blogging responsible for Kimberlin’s unsupported claims of death threats and other harassment. When Walker told the judge that Brandenburg protected his speech, Vaughey ignored Brandenburg, then described his own sense of justice:
THE COURT: Forget Bradenburg [sic]. Let’s go by Vaughey right now, and common sense out in the world. But you know, where I grew up in Brooklyn, when that stuff was pulled, it was settled real quickly.
WALKER: I’m not sure what that means, your honor.
THE COURT: –Very quickly. And I’m not going to talk about those ways, but boy, it ended fast. I even can tell you, when I grew up in my community, you wanted to date an Italian girl, you had to get the Italian boy’s permission. But that was the old neighborhoods back in the city. And it was really fair. When someone did something up there to you, your sister, your girlfriend, you got some friends to take them for a ride in the back of the truck.
WALKER: Well, Your Honor, what–
THE COURT: –That ended it. You guys have got this new mechanical stuff out here, the electronic stuff, that you can just ruin somebody without doing anything. But you started it.
Finally, as Judge Vaughey rendered his decision, he displayed an incredible degree of ignorance of modern forms of speech. In concert with his disregard for Supreme Court precedence, his gross ignorance resulted in an illegal prior restraint on Walker’s speech and his arrest for exercising a constitutional right:
THE COURT: Okay. All right, sir, this Order shall remain in effect until 11-15 2012. During that period of time, you not — shall commit any act that causes in person (ph) fear and apprehension of bodily harm, any act that places the gentleman in fear and apprehension of grave bodily harm, any assault, rape, attempted rape, sex offense, false imprisonment, harassment, stalking, [inaudible] or malicious destruction of property. The Respondent shall not contact the person in person, by telephone, in writing or any other means, and any other means is putting it on a blog, a Tweet, a megaphone, a — smoke signals — what else is out there — sonar, radar, laser, nothing.
WALKER: So I’m not allowed to speak about him for 6 months? How about the First Amendment?
THE COURT: How many times have you been interrupting? And you shall not contact or harass him in any way. You shall not enter his residence, wherever he may be living. You shall remain away from his place of employment, wherever that may be, he may be employed.
Now, let me get to the — now, should this — should you violate this order, sir, you are subject to being prosecuted by the state’s attorney’s office as a criminal case, and if found guilty, the maximum penalty for the first violation is 90 days in jail and/or it’s a $500 fine, could be a $1,000 fine. Or worse than that, you could be in contempt of this court, where you could — I could do anything that I deem necessary to keep you away from — or e-mailing him or Twitting him or Googling him or Tooting him or smoking (ph) him, whatever phrase you use. I don’t know if [inaudible]. Thank you [inaudible]. [all emphasis mine]
Your Honor, I do not know Judge Cornelius Vaughey. I have read (online, ironically) that he had a long and distinguished career as an attorney, an associate District Court judge and administrative judge. Judge Clyburn said of Vaughey, “Judge Vaughey was always concerned about conveying a positive image of the judicial branch. He was also a leader in innovative dockets and was a fair administrator who sought to deliver equal justice to all.”
It is unfortunate that such gross ignorance and bias in contradiction of Clyburn’s accolades would manifest in the twilight of Vaughey’s career. However, no respect or honor due him should prevent you from righting such an incredible wrong and taking the steps necessary to ensure that what happened to Aaron Walker in a Montgomery County courtroom never happens again.
My letter as a PDF.