Judge Kelly Skye: So, I have read the briefing on all of the defendants’ motions to strike. They’re well briefed, and I will tell you preliminarily that I am inclined to grant them. So rather than start with the people who filed the motion, I’m just gonna go straight to you. And then I will allow Ms. Vaughn and Mr. Fuller to respond after you. Okay?

David Koenig: Okay. So you say that you have read the–their motions. Did you read my–the response from me?

Skye: I thumbed through your response. I did not get it until so late that I didn’t have an opportunity to thoroughly review it.

Koenig: Okay. I understand.

Skye: But I brought it here with me in case you want to refer to pages. I have it here so I can–

Koenig: Oh absolutely. No, I appreciate that. I just, I am not blaming you. I was late in getting it to you. I just wanted the context of where you were at, and…

transcript from the beginning of August 16th, 2023 hearing on motions to strike the case koenig vs clinchy et al from multnomah county circuit court. audio here.

The audio clip transcribed and linked above is from the only hearing in front of a judge that my defamation case against Evans, Jennifer, and Lola ever got. The full story of the court case was told in The Smokescreen and The Circus. The entire 77 and a half minute audio recording of the hearing will be linked later, and this clip can be heard starting at the 8:25 mark.

It is my opinion that Judge Kelly Skye did not do her job properly in my case. She exhibited clear bias against my side and admitted to only reading the other side of the story. Furthermore, other details that will come out in the full recording and my analysis below will reveal a poor understanding on her part of not only the facts of the case, but also of what particular hearings we were supposed to be having, and even of some of the arguments of the defense lawyers that she upheld.

I write this with no animosity nor bitterness toward Judge Skye. Furthermore, though I am aware that it is within my power to make a complaint about her conduct in this case to the Commission on Judicial Fitness & Disability in the Oregon Judicial Branch, to this point I have not done so.

I did not bring this case to court because I wanted to make any money. Even if my costs had been greater than my winnings, if the court had made a judgment against the defendants I would have considered it a success. Even if the court had not made a judgment against the defendants, if enough came out in trial for the world to see that I have been telling the truth the entire time, and the defendants have been lying the entire time, I would have considered it a success.

The political leaders of the Scrabble organizations in North America and of the World English-language Scrabble Players Association are continuing to behave in obviously dishonest, corrupt, and complicit ways to keep me from playing the game that I love, the game that I worked for 20 years to become one of the best in the world at, the game whose World Championship I was knocking on the door of winning someday in the near future. I wanted an objective third-party that had moral authority to cast judgment on the case, because I knew that all of the facts were in my favor. I believed that with such a judgment it would be very hard for the Scrabble associations to continue to keep me out and to continue granting so much political power and influence to the Clinchys without tanking their own reputations.

I want to be able to play Scrabble against the best players in the world, and I believe that it is necessary to completely disempower the Clinchys. This is not a matter of vengefulness, but of accountability. It is because I love the game, and I want it to have a healthy community. It cannot do so as long as people who are so morally rotten have any influence whatsoever.

I am sharing the full audio recording of the hearing because I want people to hear my story, and also because I want people to understand how guilty people distract, dodge, and manipulate, to keep a conversation about the real issues from ever happening, and to attempt to keep their abhorrent behavior out of view.

The attorney for the Clinchys, Michael Fuller, uses protective orders as his chief unethical legal weapon, and a protective order is the exact reason that he and my former attorney Marc Mohan are currently under investigation by the Oregon State Bar for ethics violations in my case. It disgusted me that the lawyers agreed to a protective order behind my back, because I wanted no details of this story omitted from the public court record. I wanted that because I have done nothing wrong in this entire story, and I have nothing to hide. It is because I want every single detail of their wrongdoing on public display for eternity. As such, there is zero chance that I would have consented to any protective order on any element of this case.

However, the May 25th protective order that enabled Michael Fuller to sabotage my working relationship with Marc Mohan was not even supposed to be a subject of these hearings. We were scheduled to have two hearings in the courtroom that day. The first was about potentially putting a new protective order in place so that Jennifer Clinchy could keep her answer to one question under seal and out of the public court record, a Request for Admission that she was legally obliged to answer under oath:

Did you state, while employed [by] the White House Office of Science and Technology Policy, that it would be smarter to assassinate a Supreme Court Justice than to assassinate a President?

request for admission no. 14 in this document. I have corrected the grammar and the name of the office from the errors in the document that marc mohan produced.

Jennifer and Evans attributed to me many violent words that I did not say, at a time when I had not been around them nor talked to them for years, based on a fictional rewriting of our history and malicious gossip. I wanted to show the world not only that their entire stories were lies, but also that they were hypocrites who repeatedly accused me of the things that they did.

The second hearing scheduled that day was about the anti-SLAPP motions that the defendants made to attempt to prevent the case from going to trial. Only that hearing actually happened.

Marc Mohan was a bumbling idiot who dug my case into a deep hole and put me in a position where I had to represent myself pro se. I am not a lawyer and was in completely over my head trying to play the part of one. However, I am completely honest, as anyone who knows me well will testify, and acted in impeccably good faith throughout the entire court case. In contrast, Michael Fuller is barely capable of uttering a sound from his lips or putting a word to paper without a lie coming out. The man is not just a dirty lawyer; he is a pathological liar, just like his client Jennifer Clinchy.

A smart and diabolical thing that Michael Fuller did was to bombard the judge with empty accusations that I and my previous lawyer were committing “bad faith litigation conduct” before we ever had our hearing, so that when I retorted by showing that every single one of those accusations was a bald-faced lie and that I had material proof of many examples of bad faith litigation conduct by both Michael Fuller and Jennifer Clinchy,1 it all came across to the judge as: “Both sides are squawking about the same thing. I’m just going to let these accusations cancel each other out in my head, and I will not listen to nor tolerate any discussion of bad faith litigation conduct in this hearing.” This is a textbook example of how to get away with bad faith litigation conduct.

Mr. Fuller put his false accusations of bad conduct by me in front of the judge not just through the case filings, but also by throwing hissy fits in emails to both me and the court staff on the Monday before our hearing and then on the morning of the hearing itself.2 He did this because he only found out on that Monday that I had publicly filed the declaration which included the full story of his unethical behavior in using the earlier protective order, and that I had reported him to the Oregon State Bar.3 Though the judge was not copied on those emails directly, her staff passed the word on to her.

As a result, the judge thought the purpose of the first scheduled hearing that mentioned something about a protective order was to discuss Mr. Fuller’s issues with the earlier protective order. This suited Mr. Fuller just fine, as it gave him an opportunity to start the hearing by accusing me of bad faith litigation conduct, thereby making himself invulnerable to any such accusations.

This is the full audio of our hearings with Judge Skye.

After brief introductions, the discussion of the protective order starts right around the two minute mark and ends at 8:25.

At 5:08, Mr. Fuller said, “he had publicly disseminated documents marked—or at least one material marked—confidential under that order to the public, so the damage has already been done.” Mr. Fuller had only ever designated one single one-page document confidential under the protective order. So there was no way that I could have improperly disseminated multiple documents. But he intentionally phrased his comment to deceive the judge into believing there might be more.

And what, might I ask, “damage has already been done”? It was the damage to Michael Fuller’s legal career, because I had just exposed him doing something massively unethical.

In the follow-up conversation, Judge Skye mistakenly said that complaints to the Oregon State Bar are confidential. The webpage where ethics complaints are first submitted has this banner across the top of the page:

This process is NOT confidential. All materials received by the bar are considered public record. A copy of your complaint will be provided to the accused attorney and a copy retained by the bar in accordance with current OSB records retention policy. Retained records are available for public inspection through the OSB Public Records Clerk. Keep this in mind as you decide what personal information to disclose in your submission.

The next part of the hearing is what was already transcribed at the beginning of this post. Let me explain that when I admitted to submitting things late, I had not missed any deadlines.

I had only been my own lawyer for about two and a half weeks before this hearing. In that short time, I had come from a point of not having any of the right computer accounts, not knowing how to submit a single filing for the case, and not having read about two-thirds of the filings for the case, because Marc Mohan had not shared them with me. By the week of the hearing I had given myself one of the fastest crash courses in pro se representation in history. I only met and spoke to the judge’s clerk for the first time on Monday, August 14th, two days before the hearing, and I only learned on that day that legally I was supposed to deliver paper copies of all of my filings to the judge’s chambers in addition to the electronic copies I had been filing. Furthermore, the clerk explained that although some judges waive the requirement for paper copies, Judge Skye generally prefers to get and read paper copies of everything.

I still managed to get everything filed by 12:15 PM on Tuesday, August 15th, rushed to a copy shop, and submitted paper copies of all my filings related to the motions to strike by around 2:00 PM on Tuesday, when our hearing was scheduled for 2:00 PM on Wednesday. When I arrived at the judge’s chambers on Tuesday afternoon, the clerk told me that Judge Skye was already gone for the day.

Even if the judge had gotten the printouts of my filings 24 hours in advance, that might not have been enough time for her to get a good reading of them. I wish that the judge would have decided to postpone the hearing until she could catch up on the reading. Maybe there were legal ways I could have petitioned for that to happen, but I knew almost nothing about the system I had been thrown into.

There is a little bit of discussion around the ten minute mark of Judge Skye acknowledging that she is unlikely to read things she is not served paper copies of and me apologetically admitting how overwhelmed I was in getting things filed and getting the paper copies to her.

If you only listen to one part of the recording, I suggest that it be the section from 11:35 to 43:58 in which I summarized all of the major arguments in the main response to the motions to strike, which was the primary document of mine that Judge Skye was supposed to have read before the hearing.

I know that the case that I pled in those 33 minutes was not strong in a legal sense, because I did not have enough understanding of the law and am not a lawyer. My entire purpose was simply to show the judge in a layman’s sense that the full story of the defendants’ abusive and defamatory behavior toward me that I have consistently told from the beginning is completely true, and that literally every single thing the defense lawyers wrote to describe those past events was dishonestly and manipulatively attempting to hide the truth.

Judge Skye’s terse response at 43:58 was “Okay. Alright. You have spoken for quite a bit of time.” I had not moved her in the least.

Both defense attorneys made their oral arguments in less than ten minutes, from 44:21 to 53:10. They said nothing to contest my version of events, nor to even deny the ways that they had deceived the court about what actually happened in the real life story. They knew the judge was already biased against me and determined to decide in their favor, and they absolutely did not want to say anything that would get the judge to examine that real life story more deeply.

The first and main argument made by Lola’s attorney Ashley Vaughn was that the official complaint that this court case was based on alleged that Lola’s defamation only consisted of ten words, and that everything else she said was outside the scope of the lawsuit. The version of the complaint linked there is truncated. There were three exhibits attached to it, specifically the statements from Lola, Jennifer, and Evans that were included in the original incident reports that I received from NASPA and WGPO on April 14th, 2022. When I use the word “statements” here, I am referring to the entirety of those documents.

Remember that Lola, Jennifer, and Steven Pellinen all doubled down on the defamatory attack on me with their September 9th, 2022 statements. Furthermore, as part of the original incident report, Jennifer had included a large set of attachments, among which was another five page letter that Lola had sent privately to Jennifer before any of these other statements were written. It is on pages 2 through 6 here. I specifically asked Marc Mohan before we filed the case if we should included those documents as exhibits in the complaint, and it was his opinion not to do so.

I did not understand this next part at the time of the hearing, nor at any time until I listened thoroughly and repeatedly to the recording of the hearing this week, more than a year later. Attorney Vaughn’s entire argument that the defamation accusations against Lola consisted only of “two statements” or “ten words” comes from this sentence:

Defendant McKissen calls Plaintiff “an actual psychopath” and says that he was a threat to “shoot down” a “whole random tournament of Scrabblers.”

last sentence of paragraph 10 of official complaint

Ms. Vaughn was counting ten words, because that is the number of words that appear in quotation marks in that sentence. Furthermore, she obfuscated by changing the particular definition of the word “statement” that she was using. I have been using “statement” to mean the entire defamatory documents, as did Marc Mohan in the complaint. But when Ms. Vaughn said “two statements,” what she really meant was “two sentences,” and she was referring to the fact that the ten quoted words came only from two sentences in Lola’s eight page letter that was attached to the complaint as an exhibit.

It seems to me that Ms. Vaughn’s argument was that the only defamation that counted for this lawsuit was specifically the words quoted in the portion of the complaint document before the exhibits, and not the entire document that had been attached as an exhibit. I have no idea whether this is a legally valid argument or not. Maybe attaching the defamatory document in an exhibit is enough; maybe it needs to be explicitly spelled out in the complaint that there are defamatory statements throughout that exhibit.

I frankly did not understand what Ms. Vaughn’s repeated mentions of “ten words” referred to, and I was further confused because I did not (and still do not) have a copy of the official (second amended) complaint that has the exhibits attached. This is because Marc Mohan only sent me the original unamended complaint with the exhibits attached. He later sent me the second amended complaint only for the purpose of posting it on this blog, and he thought that on the blog it was better to truncate it not to include those exhibits. So at the time of the hearing, I was not sure if the exhibits were still attached to the second amended complaint.

I attempted to gain clarity for both myself and the judge about these issues during the hearing, which eventually led to me reading out loud a bulleted list of eleven different examples of Lola committing libel per se, at 55:35 to 56:20. This list is printed in section 123 (pages 189-190) of the main response to the motions to strike.4

The judge’s immediate response over the next two minutes argued that this bulleted list of libelous statements that I had just read out loud was additional evidence that was not the basis of the complaint. However, the first nine of those eleven bullet points that I had just read out loud came directly from Lola’s eight page letter that was included as an exhibit in the complaint. Only the last two came from her later September 9th statement.

While I was confused about why the judge was considering the statements that I had just read aloud not to be part of the basis of the claim, Ms. Vaughn interrupted at 58:10 to try to frame the things I had just read aloud as a “laundry list of new defamatory statements” and both she and Mr. Fuller made short arguments that I was changing the scope of the complaint, moving the goalposts, so to speak.

Maybe they were right that Marc Mohan had written the complaint in such a way that I could only pursue defamation against Lola based on those ten words, or maybe they were not. But one thing is absolutely sure to me as I listen back to all of this. Both of those lawyers wanted to keep Judge Skye in the dark about the fact that almost the entire list of defamatory statements I had recited was directly from a document that was in the complaint.

This was virtually the entire defense strategy: Pick on procedural issues of how and where my previous lawyer and I presented the information, put misunderstandings into the judge’s head, and derail any attempt for her to fix those misunderstandings and to see the reality of the situation.

Mr. Fuller’s response to my arguments against the motions to strike was much shorter, from 51:07 to 53:10. He started out with the outrageous line, “It’s unfortunate to not have an attorney in court.” It was not unfortunate. Mr. Fuller’s unethical behavior was the exact reason I did not have an attorney.

Almost the only legal argument Mr. Fuller made was that my evidence was opinions or hearsay and therefore not admissible. He did not back this up in any way. It was just a claim that he made by fiat, but he apparently convinced the judge, because when she later made her judgment, she repeated his words that the evidence was hearsay.

This did not sound right to me. Right near the end of the hearing, at 1:13:30, I spent a couple of minutes on drilling down with the judge, to help me understand the legal definition of hearsay. I pointed out that a huge amount of the evidence was previous text messages from the defendants themselves that contradicted their defamatory stories, which was definitely not hearsay. At 1:16:33 Judge Skye dismissively responded, “Your objection is noted,” and wrapped up the hearing in the next minute.

One last thing about the conspiracy claims. Marc Mohan had written the complaint with six claims: Defamation, Conspiracy to Defame, Intentional Interference With Economic Relations, Conspiracy to Tortiously Interfere With Economic Relations, Intentional Infliction of Emotional Distress, and Conspiracy to Intentionally Inflict Emotional Distress.

Ms. Vaughn made the argument in her motion to strike and in her oral arguments that the three conspiracy claims were not valid claims in Oregon civil law. She might be right about that. When I wrote my main response to the motions to strike, rather than write out a subheading “Conspiracy to Defame, Conspiracy to Tortiously Interfere With Economic Relations, and Conspiracy to Intentionally Inflict Emotional Distress,” I just wrote a simplified subheading of “Conspiracy.” Maybe this was poor communication on my part, or maybe it was irrelevant. I did not mean to imply that there was one claim that was just called “Conspiracy.”

While Judge Skye was giving her rationale for her decision, at 1:05:15 she said, “Conspiracy is not a stand-alone claim.” I believe this was an incorrect supposition that one of my claims was “Conspiracy,” and it did not even match Ms. Vaughn’s legal argument against the conspiracy claims.

It was yet another example of Judge Skye’s poor understanding of what she was talking about, along with her blatant error about the lack of confidentiality of ethics complaints to the Oregon State Bar, her failure to perceive that the list of defamatory statements I recited was part of the official complaint, and her gullible acceptance of Mr. Fuller’s argument that my evidence that she did not read was hearsay.

Epilogue

You might naturally ask, given the recorded evidence I have presented here, why I have not filed a complaint about Judge Skye’s conduct to the Commission on Judicial Fitness & Disability. There are a few reasons for this, including that I have been unsure I wanted to extend the emotional bandwidth to fighting for fair treatment of me on that front, while I am already fighting on so many others. But there is also the fact that I have sympathy for Judge Skye, and I think she made an honest mistake on one occasion, unlike many others in this story who have repeatedly and intentionally wronged me.

I get what things looked like from her point of view. She probably has a heavy workload of a lot of cases and limited time to put into each of them, and she expects responsible and competent lawyers to put the cases in front of her in a sensible way. From the beginning, there were so many incompetent ways that Marc Mohan handled my case, including writing up a complaint with possibly invalid civil conspiracy claims, amending the complaint twice and never even fixing those issues, and failing to deliver summonses properly. It makes perfect sense to me that she would not take the plaintiff’s side very seriously, when she saw such an unprofessional job done on what should have been pro forma elements of the case.

Furthermore, when I started representing myself pro se, I made unusual declarations in which I called out the wrongdoing and incompetence of my prior counsel, which is probably something that caused her to take the case even less seriously. However, I felt it was necessary to do these things for a few reasons, and they were not all related to winning this case. One reason is that I thought there was a chance that the mistakes Mr. Mohan had already made might have caused irreparable damage to my case and doomed it to failure in the long run, and I thought it was important to document those mistakes as much as possible, in case I later needed to sue him for malpractice. Another is that I hoped the judge would have sympathy for me, as someone who was doubly screwed over by an incompetent lawyer of his own and an unethical lawyer on the other side, but who is at my core a deeply honest and good person speaking the truth about horribly abusive behavior that the defendants wrought on me.

I also believed that admitting the mistakes of evidence handling on the plaintiff side, which were only due to the incompetence of Mr. Mohan and not due to any bad faith on his part or mine, would take the sting out of the baseless accusations of “bad faith litigation conduct” by Mr. Fuller and help the judge to see that the only ones acting in bad faith were Mr. Fuller and his client Jennifer Clinchy.

I get that even if Judge Skye had not made some of the mistakes she did, I would not necessarily have gotten good outcomes. For instance, her rationale about “Conspiracy not being a stand-alone claim” was an irrelevant misunderstanding, but it is still quite possible that she did the right thing in striking the conspiracy claims from the case. Furthermore, Mr. Mohan’s inability to deliver summonses properly and the laws surrounding statutes of limitations might have eventually led to the defamation claim being struck down as well. However, I do not believe the anti-SLAPP motion should have ever applied to this case. My best understanding is that if the defamation claim had been struck down for statute of limitations issues, or if any of the claims had eventually lost for other reasons, I was not likely to get saddled with defense attorney fees.

So Judge Skye failed me only one time, but it was a massive mistake that puts a tremendous financial burden on me, especially because Mr. Fuller did everything he could to file immense amounts of spurious pretrial paperwork and to force my lawyer to do the same in response to Mr. Fuller’s motions, thereby driving up legal costs. I know well enough from other people I have talked to that this is Mr. Fuller’s playbook in all of his cases, and—though you or I might consider it dirty—the legal world accepts it as not immoral enough to be a problem.

I was too tired, defeated, financially wiped out, and unequipped to put up any more legal resistance. I attempted to call out the injustice of what had happened to me, while at the same time being forgiving of Judge Skye’s misjudgement of the situation during our hearing, when I wrote my objection to the money award.

Judge Skye took many months before she followed up with the $50,437.50 award to Mr. Fuller. I recognize that she might have read my objection in a positive way. It is possible that I helped her to understand that she had made a misjudgment in our hearing and that she now accepts how badly the defense attorneys fooled her. I understand that even if she is more sympathetic to me now than she was on August 16th, 2023 the letter of the law might have still bound her to award the attorneys fees that she did.

I also understand that there might have been other procedural ways within the Multnomah County Circuit Court system for me to challenge the award of attorneys fees. Maybe I could have made an appeal of the decision to uphold the anti-SLAPP motions. Maybe I could have found a way to get Marc Mohan’s malpractice insurance to bail me out of the fees. However, any of that would have required money and legal support that I do not have. As I already explained in The Millstone, I spent many months seeking legal aid, both by contacting every legal malpractice attorney in the area that I could find and by reaching out to local law professors, law school clinics, my State Senator, my State Representative, and my State Attorney General.

I have still not gotten any help, and I am frankly not willing to waste another penny chasing after any help to work within this system that has handled my case in such an unjust way.

Now I am being summonsed by the Clinchys and Michael Fuller for contempt of court for my refusal to answer questions about my finances, as I already explained at the end of The Millstone. It is likely that if I am forced back into court for this, I will again be representing myself pro se, because I still do not know how to get any help.

What I would love is not only for some friends, family, or community to help me get legal aid, nor even primarily that. What I would strongly prefer is for friends, family, or community to help my story get media attention. I believe the world needs to take a closer look at this story, not only to stop immoral abusers from having so much power and influence in the competitive Scrabble community, but also to increase the chance that the Oregon State Bar and Multnomah County Circuit Court handle my case in a more just way, and to ensure that the Oregon laws about protective orders are repaired to prevent the type of legal loophole abuse that Michael Fuller has been making a career exploiting.

Footnotes

  1. My supplemental response to the Clinchys’ motions to strike included all of the proof of Michael Fuller’s bad faith litigation conduct and of his deliberate lies in accusing me of bad faith litigation conduct. The judge made clear from the outset of the hearing that she did not want to hear any of it, so I only made the arguments from the main response in the hearing. ↩︎
  2. Mr. Fuller’s “hissy fit” emails, some of which were sent only to me and the other attorneys, others of which were also sent to court staff, are discussed in the section Intimidation In Response To August 10th Declaration on page 5 of the ethics complaint to the Oregon State Bar about Michael Fuller, and several of those communications are included in section H of exhibits at the end of the document. ↩︎
  3. This is of course the Declaration of David Koenig that has been mentioned many times. Although I filed it electronically on Thursday, August 10th, the court did not accept the filing and pass it onward to the defense attorneys until Monday, August 14th. ↩︎
  4. Libel per se is more strictly defined than libel or defamation. Lola also said many things that were libel by insinuation, so this is by no means a complete list of her libelous statements. ↩︎