Karl versus Billy: Day 2

by ersatz_cats

Ohoho, you didn’t think this trial would be a one-hit wonder, did you? On Tuesday, after some early procedural stuff, it was all Billy cross. Aside from whatever revelations Karl’s witnesses may have down the line, this could prove to be the spiciest day of the whole trial! And I’ve got 23 and a half pages of notes to cover it all. So let’s fucking go!

…..after I repeat some quick caveats. Unlike my usual writing, this’ll be quick and raw. I am NOT going to reintroduce stuff from my previous “Karl vs Billy” posts (going back to “Day 0” and including “Day 1” from yesterday), so I will assume you’ve read them. As a reminder though, “BB” refers to “Billy’s barrister”, and “KB” refers to “Karl’s barrister”. (A barrister is an attorney who can address the court and who is forced to wear a silly robe.) Lastly, I’m normally very careful with quotes to make sure they’re accurate, but I can usually relisten to media to confirm. Since these are all one-and-done, there’ll be plenty of times where I capture what I think is the essence of what was said. “Anything in regular quotes should be considered word-for-word.” [“Anything with brackets means ‘Not word-for-word, but conveys the meaning of what was said.”] (And even then, I’m human and can make mistakes.)

“ILLEGALLY OBTAINED”

Yesterday, I brought a pocket camera to the courthouse, without even really thinking about it. It caused some consternation at the metal detector, with one guard asking their supe if one of these things is even allowed in. Eventually it was decided I could carry it, but I was told I could not photograph or record literally anything in the courthouse, anywhere, except this one sign. Which… are they supposed to replace that sign, now? Wait, they don’t have to change it to “Kingsland”, do they?

There was a bit of chaos to start, since the judge yesterday clearly told everyone Tuesday would begin at 9am, but the court’s “Daily Law List” had the starting time as 10. Obviously, I stuck with the earlier time, but figured I may end up waiting around for an hour. When I got to the courthouse, even the big board (placed just off to the left of the above shot) said 10am. But as I waited around, it became clear people were arriving for 9.

Billy made his first attempts to try and schmooze the group of us who were clearly there for Karl. In the morning, he crossed by us and remarked “You guys here all week?” He waited a moment and added “Me too.” I acted like he wasn’t there. Oh, and for anyone’s betting pools, Billy wore a red U.S. Marine Corps tie. (The symbols were very small, but I recognize them.)

There was a short delay, as the clerks tried to get the recording to work. But afterward, the proceedings started again at 9:07. But here’s where we got into the discussion everyone saw coming: Can Karl’s attorneys use material from the TG case (including depositions, discovery, and interrogatories) which Billy’s side was claiming was “illegally obtained”. To be clear, my understanding is that nothing was illegally obtained. There was a protective order in the TG case, which was eventually broadened to designate all material past and present as confidential, but that doesn’t mean that material was “illegally obtained” when it was shared prior to that revision.

Just so people understand what’s at issue, in plain English, Karl’s side wishes to bring up all the lies and conflicting stories Billy Mitchell barfed out during the years-long proceeding in California. That includes the deposition video, as well as various declarations, interrogatories, and discovery responses. Billy’s side wishes to prevent this, by citing this protective order and Team Billy’s interpretation of it, to suppress this material. Say it with me, folks: Billy Mitchell hates evidence.

BB began by sharing some paperwork, including new affidavits from Billy Junior, Anthony Ellrod (Billy’s U.S. attorney), and a “Francis Henry Joseph”, who I could not identify in the five seconds I allotted for the task. They don’t seem to appear on the Los Angeles court site yet, but Ellrod’s was said to have been signed Sep. 16, and Juniors was said to have signed two, one from Sep. 15 and another from Sep. 17.

Early on, I and some colleagues noticed Billy was playing around on his phone during court. We knew that wasn’t allowed. It had been made very clear to all that the only people in the courtroom who should be using phones or electronic devices are attorneys and formally registered press. But whatever, if he wants to jaywalk, that’s between him and the court, not my problem.

During the discussions over these affidavits, and the question of admissibility, which were already steeped in legal vernacular and minutiae, were made harder to follow by the fact that the judge and attorneys were not using their projecting voices, and even at times mumbling. But here’s what I gathered:

Junior was testifying that the documents were obtained in violation of the protective order, and was listing those docs. BB presented Junior as being involved in both the U.S. and Australian cases, and thus familiar with both sets of procedures. The judge pointed out that Junior’s testimony about the alleged illegality is still just an opinion. To that end, Judge asks what the point was of this affidavit.

BB noted they were still trying to work through all of Karl’s attorneys objections to these affidavits. Meanwhile, KB sought to file a motion from a Nicole Neal at Karl’s firm Mills Oakley, which includes a lot of correspondence. It was agreed, only fourteen minutes after everyone had arrived, that they would adjourn so everyone could get up to speed.

After some more finagling over objections, BB read the Evidence Act, and said that Ellrod (making claims on Billy’s behalf) should be taken as a reliable source of information on CA procedure. But KB objected that paragraph 68 is clear that you can’t just copy-paste parts of legislation into a form and rely on it. That sort of stuff. The judge asks if expert witness testimony is admissible, but KB disputes to Ellrod being characterized as an expert witness.

Here’s where KB leaned into the fact that Team Billy’s objections to the supposedly offending material were lodged at the last minute. [“This should’ve been discussed long ago.”] KB added that, had it been properly done six months ago, Karl’s side could have sought an equivalent expert in the United States to dispute Ellrod’s characterization. The “true evil”, as KB stated, was for the burden on this late disclosure to then be turned around on the defendant. [“You cant’ come to court and complain that the defendant did not disclose the plaintiff’s documents.”] (I was a bit confused as to why some of these items, which Karl’s side was clearly attempting to introduce, were referred to as “plaintiff’s documents”, but I assume it’s some weird bit of legalese, like “plaintiff had to disclose that these documents from the defense were being objected to”.)

The judge rebutted that Ellrod is clearly an expert in California law, and that it’s on the defense to check his review of CA law and to see if other parts contradict. KB said that’s the problem with late disclosure, that Karl’s party can’t get a U.S. expert overnight – a fact which will prejudice his client deeply. The judge counters that Australian “overnight” is prime day time in the States for such a thing. Ultimately, the judge accepts Ellrod as an expert, and declines to strike out the contested legal conclusions.

Judge did note, however, that the next section included many unstated assumptions, including how Karl Jobst got the contested documents. BB cited Ellrod’s declaration of what he observed in the proceeding. (I didn’t have this Ellrod declaration to follow along with, but I gotta say, I’m guessing it’s more of the same trumped-up mistruths they were always peddling in the TG case about non-existent protective order violations.) However, Judge rebuked that by saying that’s his opinion, and that Ellrod could have included transcripts so the Judge here could make his own determination of what transpired. Judge noted that Ellrod’s first two assertions were hearsay, and the last two were opinion. Judge did find Judge Chang’s opinion of whether the conduct was improper concerning, but he can read that opinion for himself to inform his own views.

BB pointed out these documents are interrogatories and depositions, which are not part of the public record. But Judge said Karl’s side was under no obligation to disclose whether a protective order applied to documents provided in discovery. (Or at least, that’s what I think I heard.)

KB countered that the later protective order flows from an earlier version, which didn’t apply to discovery. The way this order worked, for something to be confidential, it had to be clearly defined as confidential, and this deposition was not. The Judge seemed to agree.

Getting back to the contested material itself, BB added that some of it should have been disclosed by Karl’s side earlier, and that Karl’s side must allow the other party to seek clarification on a protective order. He also reiterated that Ellrod doesn’t see how it entered Karl’s hands without a breach of that order. BB also cited a provision that documents offered for one purpose are not to be used in another case.

Every so often, I’d look over at Karl and Billy to gauge demeanor. Karl consistently is sitting upright, with a serious and attentive expression. Billy on the other hand continued to be distracted by his phone. Admittedly, Billy looked less tired and more angry than on Monday.

The Judge still seemed unconvinced. As noted, the plaintiff made no effort to dispute these documents’ inclusion either here or in the U.S. If plaintiff was so concerned, why not bring up an immediate application to restrict their use? Why wait until the morning of the trial?

After some back and forth over dates, and a review of correspondence between Ellrod and TG attorney David Tashroudian, BB says there was no application made to use TG documents in the KJ case. (I believe this is referring to a perceived need for TG’s lawyers to apply to make their material available elsewhere.) Judge asks if they knew, noting that just cause Australian law typically forbids discovery in one case being used in another, there’s no reason to think the U.S. lawyers knew that.

Judge also asked if there’s any evidence Karl knew he was not supposed to receive these documents, adding [“There’s no evidence of disregard of the law, is there?”] BB countered that the question did come up in the U.S., and that Karl had knowledge of it, given his participation in the California proceeding by way of a sworn affidavit. Judge countered again, saying that Karl may have “participated” in that way, but that his knowledge of those details is not clear. The fact that U.S. lawyers provided these documents would have reinforced the belief that they were not confidential. Thus, if it’s a mistake, it’s one on the part of the American lawyer.

BB asserted that materials are not going to matter in the actual core dispute of the case, and that his client would be prejudiced by their inclusion on short notice. If they did, the court could consider adding them given limited use, but they ought to be excluded. Citing some bit of Australian law, BB suggested that if these materials are only being used to discredit his client, there may be an objection on that basis. (I was like “WTF? Really?”)

At this point, the Judge interrupted the proceedings to say it was brought to his attention that Billy was using his phone in the courtroom. Judge reminded everyone that he had declared yesterday that no one but accredited media can use such electronics in the courtroom. Billy went to stow the phone away, when BB whispered to him to just turn it off.

KB pointed out that civil procedure in California does not necessarily bind a non-party, and that the international nature of this exchange reinforces that idea. The judge asks if that’s the same with issues of confidentiality, if a person can be presented with an injunction. KB offered that those practices usually relate to business torts, whereas this material is clearly in the public domain. The Judge added that there’s no evidence Karl was not involved in that publication of these documents, while KB countered that there’s no evidence he was, either, adding that all the material is public except for the third interrogatory, and that the deposition video is public in at least three places.

And here, amidst all this legal wrangling, is where we get to one of he most bananas revelations of the entire day. The Tuesday crowd was a bit sparser, and almost none of the media from Monday were sitting in the courtroom (although there were photographers outside). Still, we had identified a core group of about five of us from Karl’s Discord, who at this point were trial regulars. Anyway, most of us were in the back row on the left, while Billy sat a little further down in the front row. At this point, the regular sitting two seats down from me reached over to me, and asked to borrow a pen and paper, which I of course obliged. I didn’t know if maybe they wanted to take notes? I kept doing my thing, when a couple moments later, I was handed this back:

You. Have got. To be kidding me.

If you don’t get this, allow me to explain. “Billy IV” would be Billy’s son, Billy Junior. There’s two issues here. First, Junior is scheduled to be a witness, and witnesses are not supposed to communicate about the case prior to testimony. Obviously, they’re going to talk, because they’re father and son, but they’re not supposed to be like “Bro, I just said I didn’t attend the Rocky Mountain Pinball Show, you gotta stick with that story” or whatever. (Obviously that’s a joke quote.) But the fact that Billy senior is being instructed to lie should be very alarming. Furthermore, at least in the U.S., you are absolutely not supposed to delete messages relevant to the case. Had they been caught having and deleting this exchange in the TG case, this would’ve been Big Shit. The regular in between myself and the other was able to confirm Billy was texting “Billy IV”, but was not able to confirm the content of the message. At any rate, it’s unlikely this will come up in the actual proceeding, as that requires proof – although I would love for them to ask Junior “Isn’t it true you texted your father on Tuesday morning and told him ‘Don’t tell them we talked'”, just to see what his reaction would be. Anyway, it’s just something for us jokers in the good ol’ Court of Public Opinion.

Judge asked if the deposition was marked confidential or highly confidential. KB said certain parts are, adding that the material goes to both issues of facts and damage. KB said the suggestion that the defense should’ve disclosed it is a double-edge sword, that the duty was on the plaintiff to lodge an objection.

I kept hearing some random commotion outside, which KB finally acknowledged as it got louder. Some kind of protest or something? Who knows? It’s wild how we all have these intersecting lives, with everyone having their own super-important-thing-of-the-day going on.

KB cited basic legal doctrine that the interest of truth and justice allows for liberal discovery, before moving to what he called the “fatal argument” (which he admitted that, maybe, he should’ve lead with). Citing the new Ellrod declaration, KB pointed to an Exhibit 7 (which I have no access to), arguing that the plaintiff had the authority in writing to grant access to these materials. KB said the plaintiff refused to disclose the documents, then relied on protective order late in the process when they, as the designated party, clearly could’ve agreed to provide them. (Again, there may be some legal nuance here I’m not adequately conveying. I’m a journalist, not an Australian barrister.)

As to the logistics, KB proposed watching clips of the deposition, rather than downloading and entering into evidence the entire seven-hours. KB said that, while a transcript is useful, the video itself is the evidence. A transcript can be entered when both parties agree that it’s accurate, but it can be objected to, unlike the video. The Judge agrees that the transcript is someone’s opinion of what was heard, although KB agrees he doesn’t want to get into the question of whether that makes it hearsay.

BB notes that some of this media appear to be downloaded copies, including from some random website called perfectpacman.com.

BB argues, there are issues of accuracy, and thus his party is being asked to accept evidence that’s unprovable. Also, BB said this material may be relevant to the question of harm, but not to the core proceedings.

And this is where we get into a long speech and, eventually, a determination from the Judge. He notes that defendant’s counsel proposes to cross-examine Billy about truth of statements in these proceedings, and inconsistent statements made by plaintiff in California proceedings in America. The defendant’s attorney in that proceeding provided Jobst a copy of that deposition transcript. Some parts of that deposition, so he understands, contained confidential material. Thus, by order of the court, any such material must be clearly delineated before it’s produced. As Judge understands it, Karl obtained the deposition after his solicitors here in Australia asked the American attorney for material relating to this proceeding, including depositions and anything that would impugn Mitchell’s credibility, and that this was before the modified protective order on 10 Sep 2023. Meanwhile, Judge is concerned that it could be contrary to interests of justice for this country to take advantage of a breach of order in a foreign court.

Judge reads the bit of California code, looking for insight. Notes that the provision of the deposition may have been in breach of a later section of that code, although that may refer to a deposition officer and not a lawyer. Judge concludes that, to him, it does seem the U.S. attorney breached the order, but that there’s no indication Jobst or his attorney knew that was a breach. Whether the docs were provided contrary to some law or not, they have them. It’s at the discretion of this court whether or not to deny leaked evidence. Judge adds that such cross-examination still needs to be relevant to this proceeding, with a clear purpose to challenge credibility. However, these documents also relate to damages and harm suffered, but the court may not be able to address that until we see how questions are asked.

As to the argument that it’s unfair for plaintiff who was not expecting these documents, Judge understands BB’s concern, and that it’s improper for plaintiff to be asked about things they’re not expecting or prepared for. However, while plaintiff should know about documents relevant to harm and damages, documents relevant only to credibility need not be disclosed. This material was known to the plaintiff as long as a year ago, aside from interrogatories raised this past weekend. The documents the defendant wishes to rely on now are in the public domain in various places on the Internet. A declaration from a solicitor found this material on four websites, and two interrogatories on the “perfect” website, published as long ago as Sep 2022. Plaintiff contends that those documents may not be the actual documents, however Judge points out plaintiff can check those against the documents in his possession.

The Judge began to address concerns as to whether the documents were obtained in breach of any court decision of which they were aware. Judge noted that the California court’s order was to protect that litigation, but since that case was settled, that concern no longer applies. Judge reaffirmed that the interests of truth and justice are served through liberal discovery, although this court must balance interests, preventing documents compelled in other courts from dissemination. The interests of a fair and complete trial include the opportunity to properly question each party. The Judge cited a legal principle, that documents in one proceeding should not be used in another, but there’s no suggestion these are currently being used in another. Judge concluded:

In my view, it’s not appropriate to order documents not be used in cross-examination of Mr. Mitchell, but that cross-examination must be conducted with proper limitations.

And there you have it. Karl can use this material in cross-examination of Billy. Big win for Karl. And a big loss for Billy, given all the effort they put into suppressing this material. However, this was only the start of the day.

LOTS OF REGRET

At 11:47, Billy returned to the penalty box. KB asked the Judge how to proceed. Apparently, all the exhibits and such are in these massive-ass white binders, that have to be managed each time a new exhibit is featured. The Judge asked “Would you be jumping around between them?” KB offered a short silence followed by “… I’d love to say ‘No’.”

KB starts asking Billy if Guinness restored records, to which Billy agrees. KB then asks if TG was the sole source for those records? Billy says no, prompting a trip to the binder. KB brings up Billy’s original threat letter from Sept. 2019, which includes a specific quote from an article from Variety:

“The Guinness World Records titles relating to Mr. Mitchell’s highest scores on ‘Donkey Kong’ have all been disqualified due to Twin Galaxies being our source of verification for these achievements.”

When asked if Billy agrees, he says “Not at all”, adding that “old Twin Galaxies” was the sole source, but is not anymore. KB asked if the role of Guinness changed when TG ownership changed, to which Billy said it changed long before 2018.

KB brings up Billy’s response video, to which Billy said he was “very familiar with it”. KB notes that Billy said he almost never uploads to YouTube, and that this must therefore be very important. Billy disagrees, saying he just doesn’t do it often. KB notes that this response was posted 4 June 2021, the same day Karl first edited the full conversation, to which Billy agreed.

KB asked [“Do you accept that, by the time you put up your video, Karl Jobst had already edited his?”]

Billy: “Not a chance.” He added that, when he saw the edit had happened, he (Billy) had already posted his response, so it’s possible it prefaced it by a short amount of time.

KB recalled Billy’s Monday testimony that, when he saw the video, he vomited for weeks. Billy clarified that the vomiting wasn’t for weeks, that you vomit and eventually you can’t vomit any more.

KB said, if you’re having that reaction to that video, then surely you don’t want people to see those terrible things. Billy agreed. KB added, [“You put those things in your response so more people could see them?”]

Billy rebutted “No”, drawing some puzzlement. Billy then got a bit agitated and added [“What do you want? I can give a longer answer. If you just want me to say ‘No’, I’ll say ‘No’.”]

KB had a portion of Billy’s video played again, adding [“That is you reproducing the entirety of the portion of the video you claim made you so sick.”] Billy agrees. KB notes that Billy’s video is still up, while Karl’s portion of that video is down, making this the only spot where it’s available.

KB asks, in a rhetorical way, [“Can I suggest these are not the actions of someone who is terrified?”] To which Billy gives two variations of [“You can’t suggest that at all.”] KB then quotes Billy from that video, prefacing the clip:

For those of you who haven’t seen it, here’s the clip.

Billy’s answer is that he doesn’t believe there’s one person in the world who saw his video and didn’t also see Karl’s. (Which… still doesn’t explain that quote.)

KB asks Billy to confirm that the most heinous part of Karl’s vid related to Apollo’s passing. (KB takes a quick aside around this time to inform the court that he will be referring to Ben Smith as “Apollo”.) Billy said KB was selling the rest of the video short, but that that is correct, calling it an “attack on my humanity”.

(Note that the procedures here involve the barrister asking questions to get Billy’s confirmation, but in the interest of actually getting this finished and published, I’m glossing over those finer details of these exchanges.)

KB cites Billy’s Monday testimony, that he was completely silent with Apollo video, thinking of how his mother had to watch it, and how as a father he has kids of a similar age, and how he wouldn’t wis this on anyone in the world. Billy agrees.

There’s a brief silence.

KB then says [“So the difficulty with this is, you were joking about his death with other people.”]

Billy said he regrets making the joke, and that he did not for a second believe Apollo had died.

KB then cites Billy’s texts to Carlos. “My wife found online” “No joke”.

Billy said that meant [“No joke that he found it”], not [“No joke that he’s dead.”]

KB reminded Billy that he also texted to Jace Hall, and that he had children of the same age when making these jokes about Apollo’s death not only to Carlos Pineiro but to Jace at the same time.

Billy said [“No, it was dark humor.”] Billy added he wished he didn’t do it, because three years later it became true.

KB continued quoting the texts. “If it is true I will not shed a tear. I will try my very hardest not to smile or giggle.”

Billy said it’s correct what he said, but reiterates [“I didn’t believe it for a second.”] We got two more “dark humors” before Billy added “I regret doing it.”

KB asked if Billy thought about how the mother would feel. He said he did not, and that he didn’t think it was real.

When asked why Billy didn’t believe it was real, Billy suggested this was because it was reported on Reddit, as opposed to a reliable source like ABC.

KB asked why he would send it if he didn’t believe it. Billy said again it was just “dark humor”, that was very inappropriately placed.

KB then reads from the texts again: “I certainly hope you find something solid.” KB asks if that meant he was hoping to find it on ABC.

Obviously these questions were expected, and Billy’s answers rehearsed. And he was hard into stick-to-the-script mode at this point. “Dark humor that I regret.” “I regret it.” [“I sincerely regret it, especially because it became true 3 years later.”]

KB then cited further texts – ones that normally get left out of the screenshots – about the cause of death being a spider bite. KB asks about Todd Rogers’ spider collection, and whether they’re venomous. Billy doesn’t recall. More “That’s the dark humor”, “the dark humor”, “more dark humor that I regret”, “dark humor that I regret”, [“didn’t believe for a second that he was dead”.]

KB then referred back to the extended texts, and this bit from Billy:

Yeah I’m going to buy Todd a pizza when I see him

BK asked, [“Why would you thank Todd?”]

KB referred back to yesterday’s “evidence in chief” (I guess that’s Australian for direct questioning), where Billy tried to justify these texts because TG’s investigation was tense. But KB asked, was that really a justification?

Billy answered “There’s no justification for it now”, adding [“I used dark humor as a tool and I regret it.”]

KB asked about the word humor, and how that applies. Billy answered that if it wasn’t “dark humor”, he’d be joking, but it was “dark humor”, and he regrets it.

KB offers a puzzled silence before adding [“But you were joking.”]

My final tally: Thirteen “dark humor”s. Sadly, I didn’t count the number of times he said “regret”.

I’d like to take a moment to say that Billy’s case should really be doneski, right here and now. Even if Karl’s statements about the settlement are false (and we believe now that they were), there’s no separating that supposed damage from the damage Billy self-inflicted with these texts. Granted, these were made public in 2020, but they weren’t broadcast so widely until Karl’s contested video. So even if everyone saw Karl’s video and said “WTF, Billy’s a disgusting piece of shit, fuck that guy”, it’s on Billy to prove this is exclusively due to an incorrect detail about the settlement, and not the proven fact of Billy’s “dArK hUmOr” remarks, regardless of how much he regrets their consequences now.

KB then went back to Billy’s video, and Billy’s words “Regardless of anyone’s opinion of me, or my dispute with Apollo…” KB offered this as a concession that Billy knew at the time that people had a negative opinion of him. Billy disagreed: [“Not in the context you’re saying, not at all.”]

KB asked about Billy’s video statement that the settlement did not affect Apollo’s life moving forward. KB asked, [“Can I suggest this claim was incorrect?”] Billy said [“You can suggest it, but you’re incorrect”] From there, KB went into an exchange, establishing that Apollo generated money through videos. [“Settlement with Apollo had him signing over copyright of videos, and you knew he generated income from those. With him handing them over, you knew that would affect his income.”

Billy countered by suggesting Apollo was quitting YouTube anyway. (While this was not noted in court, even after “quitting YouTube”, any videos still public still continue to generate revenue.) KB noted that Apollo didn’t quit YouTube, and posted a video shortly before suicide. (To be fair, “quitting YouTube” isn’t really the same as “never uploading anything ever for any reason”.) Billy answered that Apollo could still generate income, he just wouldn’t have those videos, which already made the money they’re going to make.

KB then quotes the end of Billy’s video:

I plan to respond the way that everybody anticipates for me to respond.

KB asks [“It means, doesn’t it, that everyone knows you’re going to use Jobst?”]

Billy responded with a story. What he meant was, he planned to send Karl a concerns notice to challenge what Karl said he did and stop it. He sent the notice, and Karl continued mocking it, and wouldn’t stop. With public rebuttals, he wouldn’t stop. Billy then added “If he had stopped, we wouldn’t be here.”

KB tapped into some nice courtroom dramatics, waiting a moment before slowly repeating the line.

“If he had stopped, we wouldn’t be here.”

“He wouldn’t stop, he just kept coming.”

KB asked, [“He removed the contested words, did he not? On June 4th?”] KB added it doesn’t sound like he “kept coming”.

This led to a quick exchange. KB said Karl removed the words. Billy said [“And he kept coming.”] KB asked, [“The offensive words have been removed, correct?”] Billy said “Correct.” KB said, [“So he did stop.”]

You have only my word on this, but at this point Billy started to get loud and angry. He was upset that he’s supposed to just answer and stop. (Yes, courts don’t appreciate witnesses who bury testimony under bullshit.) [“He basically said I murdered him. Everyone who watched my video watched his. After he got a call from a friend, he took the words down. But he tweeted that he took the words down not because they weren’t true, but because he may get sued. Then later, he put the words back in!! That’s INCREDIBLE!!!”] Billy began to get exceptionally heated at this point. [“Everyone who talks about that video talks about those words.”

KB astutely stood there, reviewing his notes, allowing Billy to ramble on in his current state. (There are some rules about barrister having to stay standing during certain sequences, I’m not sure.) Finally, Billy settled down and said “Do you have any other questions for me?”

KB reminded Billy that [“Karl did stop, he removed words, and yet we’re still here.”]

In a change of subject, KB then pointed toward the TG proceeding in the U.S., talked about the anti-SLAPP appeal. Billy said that defendant said he lied and cheated to get scores. KB notes the imputation that Billy is a cheater who gets scores under false pretenses.

KB notes request for special damages because Billy uses notoriety of gaming to promote hot sauce company. Billy agreed, noting that appeals court ruled in his favor. Billy agrees that the TG statement was published first, and says TG sent it out as a press release to the New York Times, Washington Post, and to Variety magazine.

BB then objects that those articles are not “particularized”. Judge noted that, if they’re relevant, the indeed haven’t been properly logged. BB then lodged a further objection, noting that one can’t prove someone’s bad reputation through contemporaneous publications. KB then suggested that Billy would ordinarily be asked to leave the court during this discussion. Judge noted, however, that the party to the case is entitled to be in court regardless. Judge then turned to Billy to explain the situation: Normally, if there’s discussion about what questions a witness may be asked, that witness is usually asked to leave the courtroom, but Billy as a party can stay, and is under no obligation to leave. Unsurprisingly, Billy elected to stay, although the Judge would ask Billy to put away the trial bundle binder he had open.

BB once again brings up arguments over “relevant sector”. BB states that the defense can’t prove reputation matters using these publications, because they involve a “different sector”. (In other words, these are about Billy being a cheater, whereas the negative imputations of Karl’s video are of an entirely different matter.) Judge counters that all of it still relates to Billy’s reputation as a gamer. BB felt that’s too broad of an interpretation. KB argues, contrarily that the publications go to matters of harm and damage. Admittedly, it was amusing watching both barristers do this dance of standing down and sitting up.

At this point, it was 1:05pm. Judge called an adjournment for a long lunch, until 2:30pm. As some of us regulars waited outside the courtroom, we got to talk about major media, and their failure to adequately cover the news. One friend said “They don’t care about facts, they just care about clicks and stirring up conversation.” Billy, in another apparent attempt to charm us, swooped by and said “This guy knows what he’s talking about. I should get him on the stand.” Barf.

Anyway, with these long hours attending court and then typing this bullshit up each night, this long lunch thankfully gave me an extended session to actually explore around downtown for a while. It’s good, I brought my face razor from home, but I actually did need to find shaving cream.

“TRUE AT THE TIME”

Billy was on his phone in the courtroom again as we reconvened. But this time, he put it away as the judge arrived.

Judge raised a question as to whether the publication caused the harm it is presented as having demonstrated. He cited case law that publications at the time are relevant to the causation of loss. Judge offered a distinction that these publications can’t go to questions of bad reputation to mitigate losses, can’t use to say not entitled to damages, but they can go in as showing his reputation had been damaged. BB differed with Judge, suggesting they’re allowed in only if they’re a causation point. However, Judge allowed publications, and may consider the matter further where applicable as long as it’s limited to the publications listed in these documents.

After all that, we got back to that hot cross examination.

KB reiterated platforms that carried TG’s statement, asking about Billy’s characterization that Variety was “the big one”. Billy said, what he meant was, that was Jace’s go-to publication. Billy said, when Jace bought TG in 2014, he explained had a friend who worked at Variety, and said he used that connection to get stories out. Billy then surmised that’s what happened here, leading Billy to call Variety “the big one”. KB suggested this meant Variety was, in Billy’s eyes, a substantial publication.

KB asked Billy about his attendance at Music City Multi Con, from 29-31 October 2021. Billy said “I think you asked if it was a paid appearance. It was not.” Billy added it was not paid, and he was not a featured guest. KB pointed out that Billy just added a word – “featured”. Billy then reiterated, was not a “guest”, was not expected, and was not paid. He says he walked in to see three friends. KB asked, [“Just to say ‘Hi’ to 3 friends?”] Billy told story of three distinguished industry people, they spent time, had dinner, then Billy went to his friend Richie’s wedding in Las Vegas with reception at the Pinball Hall of Fame. KB added that Billy is now saying he stayed overnight. Billy said yes, he had a connecting flight. When asked if he played games at the event, Billy said he did. KB asked to confirm that Billy didn’t have a stall. Billy said they did have a stall, and they gave away some stuff. KB asked, if he had a stall, wasn’t he then paid? Billy said, no, he was paid the year before.

KB recalled Billy’s testimony about being paid “handsomely” for an old event in Australia. (Looking back at my “Day 1” write-up, this was one of the “straggler questions” I glossed over at the end. Sorry, had I known it would’ve been relevant later, I would’ve gone into detail.) KB pointed out that the reason Billy said he was paid so “handsomely” was that he was able to sell merchandise, and that he was also able to sell merchandise at this Music City Multi Con. Billy said, it was different, at the Australia event he had much more, for this Music City event, he only had what was on-hand.

KB asked Billy if he ever issued an invoice for that Music City Multi Con appearance.

Billy said no.

KB then showed an invoice on the screen. It was taken down almost immediately, as BB and the Judge asked if it needed to be disclosed. Eventually, it was allowed back up.

KB read the invoice. It was for “Music City Multicon”. The invoice was dated August 20, 2021, and the event was scheduled for October 29-31, 2021. The top billed item is for “Billy Mitchell personal appearance”, at a unit price of $4000.

Billy immediately pulled a whole “Oh, you meant the other year!” But not in that fun, comic way they do in cartoons. I didn’t capture exact verbiage, but he responded in the angry, aggrieved style, as if he’s been trying to say this and it’s everyone else’s fault for not making it clear.

KB brought the spice back out again. [“Mister Mitchell, I’ve been asking you and going slow and going to great lengths to say 2021.”] KB pointed out the invoice, dated August 20th, 2021 was seeking a deposit before he attends.

Billy with his raised voice said he never saw this, that it only went through the manager. He said the first Music City event he attended he got paid $4k, and the second time, he didn’t. Billy tried to pass this off as though it were his testimony all along.

Note that, even if we try to interpret this charitably toward Billy, this is still bad news. Remember, all of this goes back to whether these events cancelled on Billy because of Karl’s video, and whether Billy’s income was damaged. If Billy attended 2021 unpaid and 2020 paid (assuming there was a 2020 event), then it fits with his narrative of it not being a paid appearance subsequent to Karl’s vid. But UH-OH, it turns out it was after Karl’s video. Hmm, somehow he failed to disclose that.

KB points to Monday’s discussion of 2021 Free Play Florida. Billy said he didn’t know whether he was paid for that. KB pointed out that Billy had a stall and sold merch at that event as well. KB asked about Billy’s promotion of a Costco in Davey, Florida. Billy asked of the event, “Do you have a photograph?” KB ignored Billy’s question, and asked “Did you promote the store?” Billy’s reply was “The answer is no.” Billy said this sternly, one time speaking over the Judge. KB put up one of Billy’s Instagram posts, indicating a collaboration with the store. Billy explained that he and his wife shop at that store, and donate hot sauce to them for a charity event, but he did not attend.

KB recalled earlier questions about SFGE, and questions by BB about the effect the TG statement had on him. Billy said that some places, such as MWGC and SFGE, kept arrangements they had in place.

Billy agreed.

KB reminded Billy of his declaration in the TG case, where he said some events ceased contact, whereas others he was forced to settle for less money.

Billy’s answer was “It’s there, so it must have been true at the time.”

KB asked if that’s what Billy is saying, that SFGE settled for less money.

Billy replied, “It’s here, I declared it. It must have been true at the time. Now, six years later, I don’t recall.”

KB brings up the U.S. declaration from Shawn Paul Jones, Billy’s manager. KB asked if Billy represented this as true and correct in the California case. Billy said [“I don’t know, it was signed by Shawn Jones, maybe you should ask him.”] KB reminded Billy that it was portrayed in TG proceeding as true and correct. Billy said [“Then I agree it’s true and correct, I’m just not sure six years later.”]

Jones’ declaration included the remark “In 2019, damages continued, as more events severed ties, such as Southern Fried Gaming Expo.” KB pointed this out and asked Billy, “Didn’t they book you?” Billy said “No, they did in 2018, but not in 2019.” (Narrator’s note: They also had him appear for their 2020 online event.)

KB recalled that Billy said on Monday that he only books SFGE every other or third year, offering to get the transcripts if Billy needs this proven.

KB moved to the next exhibit, showing listings of damages attached to that Shawn Paul Jones declaration:

KB goes into a speech. [“You claim damages from SFGE, don’t you? You said you lost this revenue due to Twin Galaxies’ defamation. Why are you claiming losses from SFGE in consecutive years in the Twin Galaxies proceeding?”]

Billy’s answer was to say Shawn Paul Jones put this together.

KB asked if Billy is claiming damages from TG in their case, then claiming those same events as damages here.

Billy didn’t address that point directly, simply pointing out that these were from 2019 (prior to Karl’s video).

The Judge noted here that the issues is whether Billy is consistent with damages claimed, as well as with statements made yesterday. I’ve been impressed with this judge, although a couple moments have given me some pause. Judge admitted at this juncture that he’s having a hard time telling if these statements are actually inconsistent. Hopefully, he does a full review of the transcript before making a determination.

At this point, KB tried to discuss Billy’s action against Cartoon Network. KB says Billy alleged that CN used Billy’s image and likeness for the villain Garrett Bobby Ferguson.

KB asked Billy to authenticate the paperwork on screen.

Billy said [“I’ve never seen that.”]

KB replied, [“You’ve never seen this? This is your proceeding against Cartoon Network!”] Billy said [“If that’s what it says here, I’ll believe you.”]

KB started into line of questioning, using words from that complaint, that CN made him out as a villain, to show Billy had a public reputation as a villain. This was where BB objected, saying his reputation in 2015 is not relevant. Judge asked KB what the relevance was. KB agreed to drop the issue and move on to other questioning. (You never win them all.)

KB referred to Jeremy Young’s post to Donkey Kong Forum on February 2, 2018, which goes into Billy’s scores and the use of “hardware known as MAME”. Billy acknowledges that he definitely read it back then. KB asks Billy to confirm the post accuses him of cheating. Billy said he doesn’t recall the photos, but adds that the post is “known to be false for years now” (direct quote).

Around this time, I saw a lady with a laptop, possibly with the press. She had brought up an image of Garrett Bobby Ferguson. lol

KB brought up Billy’s Sept. 2019 legal threat, from Manning & Kass, Ellrod, Ramirez, and Trester. He shows the letter demanding reinstatement. Billy once again said he didn’t know if it’s accurate, doesn’t know where KB got it. KB notes that the letter characterizes Guinness as relying on TG for those scores, and those scores are disqualified for that reason. KB then notes Guinness published a book as well, and shows the bit titled “The records that never were”.

BB said the question of relevance is going to keep coming up. Judge noted that a reputation can be grown over several years, and that this at least was more recent than 2015.

Billy is asked if this bit appeared in a Karl vid, but Billy said [“To tell you the truth, I’ve appeared in many of his videos.”]

In his rhetorical way, KB asked if he could suggest that Billy uses litigious processes to force others to recognize scores, noting Billy’s use of concerns notices as they’re called in Australia as part of the litigious process.

Still pointed toward that threat letter, KB cites the link to Variety as justification to bring up that article.

KB asks when TG responded to that threat letter. Billy was unsure.

KB asked about the timeframe of the dispute, offering that it lasted seven months. Billy disagreed, noting that the evidence from DKF was posted on February 2nd, and that TG [“made their decision… they claim… on April 12th”]. (I interpreted the pause as his way of saying “Oh, they’d already made their decision before then.”) Billy added that Jace was the only one at TG he spoke to.

KB asked about when Billy initiated action against TG, on April 11th, 2019, and when the first amended complaint was filed on March 12, 2020. Billy said he felt uncomfortable giving absolutes, that the attorney who filled these out should answer.

KB reviews the claimed damages in the TG case – diminished reputation, lost business. Then KB asked what “injuries” Billy had claimed. Billy cited lost shows and appearances, had to take time to address this, and that was time away from his family. Billy stressed that for gaming stuff, it hurt for a short time. (Because if it hurt for longer, then it would be hard to separate claimed damages due to TG and due to Karl.)

KB asks about physical injuries, garnering an objection from BB. This leads to discussions about the aforementioned losses. Judge says there’s no reason he couldn’t suffer harm three years earlier, then suffer fresh harm three years later. KB suggests that, in fact, all the harm was from earlier. Judge asked KB if he was suggesting that the severe physical reactions Billy described yesterday were really leftover reactions from the old TG statement. KB said yes, to which Judge pointed out KB hasn’t pleaded it. KB noted he is entitled to test it. Judge said he would allow it to go on a bit longer, and see what happens.

At 4:19pm, KB asks Judge when he intends to adjourn for the day. Judge says usually 4:30, noting that per their schedule, they should be in the second witness by now. KB suggests he can take time overnight to streamline the rest of their cross-examination.

KB brings up Billy’s declaration from anti-SLAPP. Everything is said to be true and correct. In the declaration, Billy describes the accusations of cheating as having spread across multiple platforms. Billy noted that his son was on the legal team and handled those details, adding [“He’s way smarter than me.”] KB asked Billy if Junior prepared this statement. Billy said “No.” KB asked for clarification of the word “impressions”, when in the declaration he said the reporting garnered “millions of impressions”.

KB then brought Billy’s attention to the following passage from that declaration:

Jeremy Young’s community from the Donkey Kong Forum flooded the Dispute Thread, and it resulted in a cesspool of individuals with preordained conclusions expressing hatred for me 24-hours a day.

When KB asked Billy what he meant by that, BB objected on grounds of relevance. Judge said that relevance only arises from the publication of Jeremy’s post, and that it does not speak to a negative reaction. Some of these publications also need to be properly tendered if they’re being entered into evidence.

And with that, the Judge adjourned for the day. We reconvene at 9:30 on Wednesday, regardless of what the big board says.

Afterward, I introduced myself to two other regulars, who’d been quiet. They said they were also from Karl’s Discord. Meanwhile, one of our regulars-to-date sadly has other obligations the rest of the week.

One last fun story for the day. One of the regulars asked if Billy knew who I was. You probably know what I mean by that. On the first day, I tried to blend in a bit, but by the second, I just came sporting a Seattle Seahawks jersey like whatevs. However, a certain thing from Day 1 I was unaware of was brought to my attention. Apparently, when I wasn’t looking, Billy had been going around to everyone – and it was stressed to me, everyone – with any notepad or laptop or anything, asking if they were a journalist. Everyone… except me.

I guess I should get some sleep before court. You know… I’m beginning to think I may not get that Ellrod write-up done this week after all.

Thanks for reading as always! See you all tomorrow.