In an attempt to avoid having his deposition in his ‘color of law’ trial recorded, blogging Assistant District Attorney John Patrick Frey, AKA Patterico, has presented a BU article to a federal court as ‘evidence’ for his rather vague conspiracy theory involving Brett Kimberlin, BU, and LA gangs.

As penned by attorney Ron Coleman (see above photo), Frey’s bizarre motion returns to one of the oldest, and frankly dumbest, canards about this website, offering zero evidence to assert that Kimberlin enjoys editorial control over BU. Longtime readers will recall that I first debunked this claim more than two years ago, then began writing here as Xenophon for a while before unmasking to claim the editorial role myself a little over a year ago. That reveal put the whole right wing Kimberlin-obsessive ‘scene’ in a state of shock, for they had convinced themselves that their bogeyman was running the show at BU. Sometimes I get the impression they still don’t quite know what to make of my involvement.

But in his latest response, Coleman simply elides this rich history of his client’s friends making enormous fools of themselves to indulge in histrionics over BU’s recent coverage of the case.

Demonstrating his utter lack of acceptance regarding what does and does not constitute a legitimate use of discovery, as well as how litigants are supposed to conduct themselves, and not conduct themselves, in public while involved in litigation, Mr. Kimberlin … called Breitbart Unmasked, which reprinted portions of the responses interspersed with commentary and misstatements of fact.

That Breitbart Unmasked is permitted to report on, even where not defamatory to lie about, Brett Kimberlin and his litigation avocation is not questioned by Defendant, notwithstanding his recruitment of this Court to prevent Defendant from honest commentary of his own about Plaintiff. But that Plaintiff views, and uses, discovery – in contrast, for example, to publicly-filed material found on ECF – as a tool to generate online calumny and to inflame a situation that has already resulted in so much waste and anguish is utterly unacceptable.

Here is the article Coleman is talking about; I defy you to read it and find any “portions of the responses” therein, because I have never read or seen the actual responses to Kimberlin’s interrogatories. Instead, they were described to me by a source with detailed knowledge of their contents, which is why I did not quote them in the piece — a method of journalism that remains completely legal in the United States. And pleas against “online calumny,” “waste” and “anguish” are pretty rich coming from Frey’s camp, given that he’s being sued for using his blog, and his status as a prosecutor, to repeatedly accuse Kimberlin of committing a crime against him without ever presenting one bit of actual evidence. Frey claims there is more we haven’t seen, but now that he has to go on the record in the matter, suddenly Frey wants the trial held in secret, presumably so the taxpayers of LA County can’t see him make damaging admissions about chilling someone’s free speech.

Along with the printout of BU’s article about Ace of Spades, Coleman has submitted a rambling ‘factual declaration’ by his client, whose argument boils down to these points:

  • His family is endangered by the violent LA gangs he has prosecuted
  • Police were dispatched to his house by an unknown prank 911 caller in 2011, the very incident which he blames on Kimberlin
  • BU once published discovery material regarding co-defendant Aaron Walker that Frey (incorrectly) thought was under seal
  • Also, BU once published photos of Walker that Kimberlin took in a public parking lot

This is ludicrous. First, it’s not like Frey gets to wear a lucha libre mask to court; the gang members that he prosecutes definitely have a chance to see his face at some point during their trials. But none of them have anything to do with BU or Kimberlin, anyway, and LA’s most hardened criminals aren’t refreshing the front page of this site every hour in hopes of seeing Frey’s image. Second, reasserting the original smear that got you sued in the first place is generally considered a bad way to support your motions before the court. Third, Walker’s discovery material was never, ever sealed, which is why we know that he was fired from his job for being a bad employee and not because he wrote blog posts about Kimberlin.

And last but not least, in America Kimberlin has every right to take photos in a public parking lot — and send them by email to anyone he likes, including BU. If Frey has a problem with that, he can take it up with the First Amendment.

Nevertheless, on this flimsy basis Coleman has asked the court to put unique limits on Kimberlin, denying him subpoena powers normally available to plaintiffs and forcing him to physically file paper motions rather than submitting documents electronically. The first request verges on the unconstitutional; the latter is just pure pettiness. Together, they are a perfect demonstration of what Frey has been trying to do to Brett Kimberlin’s constitutional rights for most of the last four years — which, again, is why he’s being sued in the first place. The claim that BU will somehow endanger Frey by reporting on his case is just icing on the fruitcake.

Frey, at far left, doing a podcast with Brett Kimberlin's business partner Brad Friedman, at right
Frey, at far left, doing a podcast in 2011 with Brett Kimberlin’s business partner Brad Friedman, far right

Frey's Declaration