ab

BETRAYAL and
OPPRESSION:

Humpty-Dumpty
Must You
Die?

 Joseph Walker, Ph.D.
Cedar Crest, New Mexico
2000

BETRAYAL and OPPRESSION:
Humpty-Dumpty Must You Die?
     by Joseph Walker, Ph.D.

The  BETRAYED
who TOO OFTEN DIE
IN SOLITUDE

John for his enduring love

DIANN FOR HER LOVING FRIENDSHIP

Marsena, My spiritual mother

JOANNE, FOR HER SHOULDER

DAVID FOR WANTING ME TO LIVE
Dennis for his friendship
Mark, the lifesaver
BOB, MY BROTHER

Loving, Caring Friends

NONA, Don, Jan
DORIS, Rita, RONA

PREFACE

PROLOGUE

      I never faxed or even sent the above letter, as it was dated. I just didn't want to handle this awkward situation in the same insensitive manner that Tony had addressed it. Instead, I later intended to have taken two copies of my letter to our next regular weekly Thursday (3/9/00) evening session and presented them to Tony and Bob Foster, the legal researcher on our legal team of three. I had had the idea that I would have then departed that appointed session and leave to them to decide for themselves as to whether they really wished to have continued with the original contingency agreement. I had hoped that the letter would have expressed exactly where I had firmly stood on the matter and the specific conditions under which I felt comfortable with and confident in their continuing the case. I have never cared for anyone who attempts to change the course of or agreed upon conditions of a situation in midstream. Of course, Tony Romo kept insisting and implying that I had somehow presented him with a case that had to be totally reconstructed in order for him to continue successfully. I had presented him my Pro Se case very much in earnest, but it was totally his own suggestion that I turn the matter fully over to him for his informed and professional execution. I think that much of the problem probably arose out of the typical opinion of too many well-trained lawyers believing that they alone have the ability to think logically and legally. That thinking is probably well founded in most cases and Tony just hadn't come to the full realization that I had been so well trained and personally tutored in the skillful art of mental maneuvering and synthesis. And most importantly, I was confident that Tony, despite his own lifestyle and desire to have a significant impact on the discrimination against gays and others, had, after all, been too skillfully trained in that revered establishment Georgetown law school. He had most likely encountered an education that no doubt duly instructed him to march to an established and recognized drummer that was probably more attuned to the good old boy's status quo of still favoring and often unknowingly supported the legal oppression of any and all minorities.
      On the Tuesday morning before this letter I had had my first scheduled session with the psychologist that had been engaged by the Defense to evaluate me. We had started the session on a confrontational note due to my having wanted to record the session in order to protect my own interests. On Monday I had faxed Tony a note requesting that he address this matter and perhaps have permission for me to do the recording. I had never received a reply, which left me on my own. As fate would have it, Dr. Roll insisted that recording the session would biased the outcome since the tests he was administering had been standardized without any recording. Of course, this first session hadn't involved any tests that had been standardized and could have been easily recorded. I suspected that Dr. Roll didn't want to be held accountable for his possibly biased findings and certainly the testimony of a paid professional would have more weight if there were no remaining evidence to the contrary. The fact that I had been left on my own gave me the feeling of abandonment on the part of Tony.
      I slept restlessly that Wednesday night after having received that letter for what little time I was able to actually doze off.  I awoke at 4:45 A.M. following one of the weirdest dreams.  I'm sure the dream had occurred due to that particular portion of the emotionally painful deposition, where I had been unjustly required to answer inappropriate questions about my private sex life that I had seriously felt were so totally reprehensible.  I had felt maliciously raped once again at that time and this dream had awaken me to a sexually aroused state where I had then reached an induced sexual climax that produced no seminal fluids.  Very, very strange for me!  I had the strange sense of being totally undefended and notably felt that Tony had left me pitifully exposed to a painfully and emotionally inflicted torture that had surpassed even the maliciously inflicted barbs of the American Orchid Society.  I recalled that he had not responded to my written request to have the sessions with that psychologist recorded so that I could have later more easily and successfully defended myself against some intentionally wrongful and certainly subjective interpretation.  He had specifically and notably suggested that if I had physically tired during any portion of the deposition due to my compromised HIV/AIDS status that we might have to have shortened some of the sessions.  But when it came to the brutal mental harassment that was far more damaging to my overall well being including my very tenuous health than absolutely anything physically taxing, there was no attempted intervention on my behalf.  It felt that he had possibly and inadvertently become part of the relentless beating.  All of this, I was told was perfectly acceptable under the current rules of law.  Just how barbaric has our American system of justice become?  And how pathetically distressing that it is of no surprise considering its noted and continuing bias in too many parts of our diverse country.  It was my unfulfilled hope that the Federal Court system and its practicing officers (the lawyers included) might have been more akin to "doing the right thing."  Instead, I found them all to willing to prostitute themselves by serving that most common demon of greed for money and the intoxication of winning.
        Tony had cancelled our regular meeting that had followed his strange and totally unexpected letter and I was actually very thankful for that timely cancellation in that I would have probably had entirely too many unkind things to say in the heat of the moment.  That cancellation gave me some valued space to seriously rethink about where I was with Tony Romo and this apparently dramatic display of attitude that I had encountered without any due warning.  I have always and sometimes to my own detriment given the benefit of the doubt to almost everyone I encounter.  Even more importantly, this missed engagement with Tony gave me added time to justly reevaluate the whole situation and determine any new direction that I might have needed to take just to survive the present situation.  The first thing I actually had to deal with was the ominous depression and suicidal ideation that had immediately flooded my total being.  Fortunately I had this incredible safety net of faithful friends that I could turn to in instances of extreme emotional turmoil.  I nearly always immediately called Bob McKinnon in Phoenix because he was the most reliable person to be available to me at any given time.  He had a Mobil phone that was with him at all times and his caring attitude for me personally went back many, many years and had never once faltered nor had he ever betrayed my sacred trust in his brotherly love for me.  The rest of that traumatic week, including the stressful weekend, had been requisitely devoted to sheer recovery and survival following the reception of that letter.
        The highlight of that tenuous recovery was needfully lit with another lifesaving call from Mark Werther.  He had called later Saturday morning and we talked for almost an hour during which time he later reported that he had gotten "madder and madder."  He too had suggested that I not mail the above letter but instead talk with Tone face to face and explain to him exactly how I felt.  A couple of hours had passed and Mark called back to explain that he had discussed with his wife Marsha the unforeseen situation and unexpected change of heart involving Tony Romo.  And that it had finally occurred to him that I had actually endured all of this unwanted shit at the hands of the American Orchid Society because they had so maliciously destroyed my profound "dignity that had been based on a lifetime of benevolence."  He had realized that this lawsuit was nothing about the more common attempt to just make a little fast cash by beating up some unsuspecting victim, and that I had indeed, been un-expectantly and brutally victimized.  Most importantly he came to the realization that he and I had become true friends and that his current concerns and involvement in the case had become a matter of loyalty and caring for my personal well-being.  This second call came at a crucial time when I was most questioning and pondering the actual causes of the lost loyalties of so many other individuals that had once considered themselves amongst my very best of friends.  Why then had I experienced the overwhelming betrayal and total abandonment of others when I had needed them the most?  I had pictured a devastated and bleak battlefield totally strewn with dead bodies and a pitiful few remaining barely alive, and my view was from the ground where I had, myself lay mortally wounded.  This was just another bleak reminder of my experienced inner turmoil that could have only foreseen a welcomed death and too little hope of ever having a meaningful life beyond that point.
        I had just executed my Last Will and Testament a week prior to this fateful letter and all I needed to have done in order to complete any unfinished business was to wrap up the last book.  I actually finished it that weekend and started this present volume just in case I lived through one more of these traumatic events that kept relentlessly pushing me to the very edge of life.
        The next Monday morning I had had a Metropolitan Court date for the expressed purpose of an eviction procedure for a tenant that had failed to pay rent for two months as well as consistently being late.  I also had two other tenants of only eight total units that were likewise delinquent.  I had sort of placed myself in this rather dire situation due to my own good efforts of not engaging in any form of discrimination against people of color.  I gave all three of these people–of-color tenants the benefit of any doubt and tried to work with their own stated/related personal problems.  All three of them repeated lied and made up some of the most creative excuses of exactly why they had been unable to meet their financial obligations in a timely fashion.  This was particularly difficult for me to deal with in light of the fact that I had unselfishly engaged myself in this monumental battle specifically on behalf of those oppressed that were likely unable to openly defend themselves.  Of some noted interest, the judge in this eviction proceeding was the wife of the Defense lawyer, Ned Shepherd that was representing Jean Schroder of Salt Lake City.
        On the Tuesday morning I had had another scheduled session with the psychologist that had been engaged by the Defense to evaluate me.  We had once again started the session on a confrontational note due to my strong objections to his emphatic employment of the Rorschach Inkblot Test.  This test is so totally objective that the person administering the test is afforded the wantonness luxury of finding almost anything they might be biasedly seeking.  That seriously concerned me since this man was being generously paid to support some undisclosed position of the Defense.  It is nothing but another obvious case of legal prostitution and too few individuals have the actual ability to remain objective when they are compensated at the rate of some two hundred dollars an hour to confirm whatever they are paid to objectively corroborate.  If this psychologist was actually ethical and truly objective, I doubt that local lawyers would have so repeatedly employed his services.  This Dr. Sam Roll had a "good" reputation amongst lawyers and from my own encounter with him; I believe that I fully understood why.
       I had emphatically suggested that he engage some other more reliable and objective instrument than the Rorschach and his defensively caustic and noted authoritative reply was that the Rorschach was the standard in forensic psychology and that I could choose not to continue the examination if I so desired.  What a dilemma!  Of course, my ending of the session at that point would have probably pleased the Defense since it would have sort of confirmed that I was a difficult and obstinate individual.  I had been placed in a most awkward position that I was certainly damned if I did and equally damned if I didn't.  Beware of the sinister traps laid by those, whose job is to keep the best of us oppressed and unable to effectively bring about any just change.  The Defense and their dastardly clients' only other alternative was to kill all the Freedom Seekers, myself included.  I would have no doubt been crucified by then if all of that had taken place some two millenniums ago.  It seemed that I had correctly predicted that the only way for the Defense to have successfully defended their clients was to have totally devastated the Plaintiff and further defile his good reputation.  All the Defense had done thus far was to continue the wrongful defamation and the infliction of relentless pain and suffering.  I found this system of justice rather sinister and chock-full of good reasons to throw in the towel and end the relentless agony.  This session with Dr. Roll had only added to the impact of the letter from Tony Romo.  I felt terribly betrayed by the entire system and the letter raised the eminent possibility of having been ultimately betrayed by even my own trusted council.
       Thursday rolled around and I was still wondering whether I had wanted to confront Tony with the letter in person.  I decided after lunch that I would take my two copies of the letter to Bob Foster's home and let him make the delivery for me.  I arrived at Bob's house at about 3:30 and put the letters into his hands with the comment that Tony's letter of March one was more than disturbing for me.  Bob responded that he had had the perceived idea that it was going to have made some sort of negative impact.  I didn't give any opportunity for Bob to add anything beyond my emphatic statement that "I really don't care if they decide not to continue with the case.  I really don't want to have to experience this kind of shit from my own council!"
       When I arrived home I told John that I didn't want to speak with Tony that evening and I didn't want to receive any other faxes.  I had wanted Tony to have a little time to seriously consider just what I felt to have been an unwarranted and damaging attack on his own client.  It was later that night that Tony arrived at the house with the proposed Amended Pleadings and a cover letter indicating that he and I would address the substance of my letter to him in the near future.  He had requested that I reply with my approval of these amended pleadings along with any suggestions that I might have had to anything that might have been missed.  I faxed my approval the very next day.
        I didn't have anytime to dwell on the matter of my failing relationship with Tony on that Friday.  Mark Werther had un-expectantly awakened me at 7:30 in the morning with the expressed purpose of finalizing the San Damiano business plan needed for his expert witness report that was due the very next Monday.  We spent almost seven hours working out the minute details so that the report could be easily defended.  The actual figures that were finally mutually arrived at were significantly below realistic possibilities and at the same time were more that substantive for the purposes of establishing damages in the lawsuit.  The same business plan and its accompanying figures were equally needed by another expert witness for the Plaintiff, Steve Riley to establish the damages as a result of my loss of enjoyment of life. 

BUSINESS PLAN
For
SAN DAMIANO ORCHIDS

            San Damiano Orchids proposed to sell original hybrids and clones made from the awarded plants bearing the 'San Damiano' clone name (see attached), but not necessarily limited to these plants and the resale of certain quality plants from other hybridizers.  The principle means of sales is intended to be mail order and through the Internet with other supplemental sales locally and as a vender at regional orchid shows.

            San Damiano would have begun sales from two greenhouses; a warm house with 1100 square feet of growing area and an intermediate house with 1070 square feet of available growing area.  (1070 + 1100 = 2170 less 15% circulation = 1844.5 X 2 levels = 3,689 less 25% breeding stock = 2,766.75 x average of 9  4" pots = 24,900 plant capacity)  Both of these greenhouses are double glazed, ¾" triple walled Lexan®.  Both are individually heated and equipped with a high-pressure fogging system employing de-ionized water.  As the business would expand, additional greenhouses would be constructed in the same manner and located at the same 4.6-acre sight in Cedar Crest, New Mexico.  Additional non-residence structures are permitted under the covenants of Sierra Vista South Subdivision.  There is also a room dedicated to flasking and light culture of mother and replated flasks of some 440 square feet. (440 sf less 15% circulation = 374 X Four levels = 1,496 usable sf X 4 flasks/sf = TOTAL potential flasks  5,984)

            The majority of sales would be seedlings and near blooming sized plants produced from mostly, but not limited to, San Damiano's own AOS awarded breeding stock with an estimated number of hybrids being no less than 75 new crosses per year.  (See attached: crosses made between 12/29/98 and 3/24/99= three months and 116 different crosses)  Yield could be anywhere from 200 to 500 seedling plants per cross, selling for somewhere between (depending on size and parentage) $ 7.00 to $ 15.00 each in their immature sizes and mature plants selling upwards to $ 35.00 depending of the quality of parentage.  I would estimate that resells would not exceed more that 20% of the estimated business.  It is estimated that the above (based on only 40 successful of a possible 75 new crosses per year) has the potential net income between $ 70,000.00 and $ 75,000.00 after an estimate of 40% to 50% total in expenses, materials and operating costs being deducted.

            The above was just the cover portion to the actual figures that had been employed to justify this summary.  Unfortunately the legal system's standard measure of justice is in terms of money.  The most interesting aspect of this above exercise was the blatant realization of just how much damage had been unknowingly inflicted on the part of the American Orchid Society.  I shared all of this with Diann and expressed that I hope this situation can be rightfully resolved.  With the lawsuit out of the way, just maybe we might have been able to get back on tract and to realize some of our abandoned dreams about having an orchid business designed and sufficient enough to justly support the rest of my life.

            The Defense was preparing their own contrived recant to any efforts on our parts and had apparently prostituted another “expert witness” into denouncing any claims that I might present.  I don’t suggest that you necessarily read the entire report; I am including it just to illustrate the extreme extent to which a Defense goes in order to discredit the Plaintiff.  Most of this report seems rather factual on its face, but the truth of the matter is that it is too often “comparing apples with oranges.”  I’m miffed that they weren’t able to produce an exclusively orchid culture expert to defend their position:

 REVIEW OF: (1) Business Plan for San Damiano Orchids, and (2) Written Report submitted by Mark Werther, Sentinel Orchids

Having examined the business plan for San Damiano Orchids and the analysis written by Mr. Werther, my comments are as follows:

Part one: Dr. Walkers Business Plan

Nowhere in Mr. Werther’s business analysis of San Damiano Orchids does he indicate any loss of income or opportunity due to Dr. Walker’s status as “not a judge.” It is obvious that Mr. Werther does not find the connection between being a judge or not being a judge material to the projections. I discovered some interesting facts which further substantiate this common sense conclusion.

The American Orchid Society maintains a database of commercial orchid growers. The database lists 286 commercial growers, 59 of which are A.O.S. judges. In other words, only twenty percent of the listed companies are owned or operated by judges. Of the five largest commercial orchid growers in America, none are A.O.S. judges, which further proves that being a judge is completely irrelevant in the business of selling orchids. Dr. Walker’s own expert (Mr. Werther) clearly states that his company (Sentinel Orchids) “evaluates vendors on performance, quality of plant material and price.” This is a completely reasonable if not obvious statement of how anyone would evaluate a vendor.

To further test my conclusion that not being a judge has no value for selling orchids, I carefully went through the July 1999 issue of the American Orchid Society Magazine. In forty-nine pages of pages of advertising, there is no mention by any vendor of their status as a judge.

Dr. Walker states in the first paragraph of his business plant that he intends to sell through mail order and the internet. There is no indication that one’s status as a judge or not a judge has any relevance to success or failure in either of these venues. Dr. Walker further states that his principal sales will be done through the internet and mail order. The fact that he would represent a catalog source and a price list to a very broad audience eliminates the effect of any potential or imagined lpç~,i prejudice. It is highly doubtful that an individual buyer in California or Florida would know of any controversy surrounding Dr. Walker.

Again in the first paragraph of the business plan for San Damiano Orchids, Dr. Walker states that sales will also take place at local and regional orchid shows. Later in his plan, he states that he will participate as a vendor in two local and eight regional shows. The attendance at these shows is the general public, a small percentage of which may be AOS members. I have personally attended dozens of these shows and have never seen a vendor promote sales by stating they are an orchid judge. There is simply no value in doing so~ Therefore, there would be no negative effect on sales of San Damiano orchids as a result of Dr. Walker not being a judge.

The second paragraph of Dr. Walker’s business plan indicates an amateur’s approach to plant culture. Growing on two levels in one greenhouse does not occur in any high quality production facility in the world. The direct consequence of growing on two levels is that plants growing on the second level are subjected to an extreme shortage of available light. The two most fundamental elements for the successful growing of plants are the quality of light and the quality of water. Diminish either of these essential inputs and you will devastate the quality of the plants produced.¹

¹ See BALL RED BOOK 16^th edition page 149. “Plants produced under insufficient light levels grow slowly and have reduced vigor, stretched narrow stems, poor branching, and small leaves”. This section on Benefits of Supplemental Light by C. Anne Whealy, Ph.D.

According to reasonable and normal professional horticultural practices, San Damiano Orchids has a 2,170 square foot capacity, less 20% for circulation and work area, or a total of 1,736 square feet for growing plants. In calculating this figure, I am giving San Damiano credit for space efficiency I do not know exists. In greenhouse production one typically loses 25% to 30% to aisles, work areas and shipping areas. Extremely sophisticated operations with removable rolling tables can achieve 85% to 90% space utilization. According to Dr. Walker’s business plan, his breeding stock will take up 922.25 square feet. This would leave 814 square feet for production.

According to his business plan, he will produce and sell from this space $149,250 worth of orchids. This would give him an astonishing $183.35 per square foot of sales. Attached is a copy of the Nursery Business Analysis, performed by Man Hodges at the University of Florida. Table 8 compares my company data to other nurseries in Florida. You will note that the University of Florida economic analyst considers production efficiency of $12.47 per square foot very high. Dr. Walker claims to be able to produce at a rate of 14.7 times this very high rating.

An analysis of Dr. Walker’s annual expenses is problematic. There is no substantiation for any of the expenses. With respect to the flasking part of the business, according to paragraph two of Dr. Walker’s business plan, he will produce and maintain 5,984 flasks of his hybrids. Assuming 10% of the flasks are mother flasks for replating (the process of separating germinated seedlings and moving them to final flasks), Dr. Walker is left with 5,386 flasks of plants to grow out.

The standard number of plants per flask varies from 25 to 40 plants. Assuming, on the low side of the average, 30 plants per flask, Dr. Walker intends to produce 161,580 young plants. Dr. Walker does not indicate anywhere in his plan an intention to sell flasks.  According to Dr. Walker’s plan, he intends to sell in the fourth year a total of 7,290 plants. The question becomes, what does Dr. Walker do with the extra 140,000 to

150,000 plants that even he does not claim he will grow in his greenhouse? Will he throw them away?  Why produce them?

Dr. Walker indicates lab expenses will be $13,100 per year.  I assume this is for the consumables involved in the flashing process. This appears to mean that very expensive equipment (laminar flow hood, sterilization autoclave) already exists. This is consistent with the rest of the expense charts, as the greenhouses appear to be free, also. There is no cost of capital, and no depreciation.

Let’s look at what Dr. Walker intends to do. I will generously forget the preparation time in the process of making flasks ready for use, which would include: sterilizing flasks prior to filling with media or creating the media from prepackaged mix; filling the flasks with media under sterile condition; and sealing and storing them until use. Looking only at the replating process (going from the mother flask to the final flask), and assuming that Dr. Walker is a nimble and focused worker and will generate 30 flasks per day, using his planned production of 5,984 flasks, this process will occupy 200 workdays a year. All this effort is for plants for which he has no planned or stated use.

In paragraph three, we are shown the detail of the business plan. Dr. Walker will make orchid hybrids, and then sell plants at an overall net margin of 50% to 60%. This is the sum and substance of the plan. Dr. Walker states that the “yield could be anywhere from 200 to 500 seedling plants” from a single cross.  The correct number is more like 0 to 40,000 viable seed. Dr. Walker’s expert correctly points this out in his report, stating, “a viable seed pod can produce thousands of seedlings”. Mr. Werther further states “there are also circumstances where only 20-50 seedlings are produced from a viable seed pod” (emphasis added). What is unsaid but true is that a seedpod that is not viable produces no seeds and therefore no seedlings.

Following Dr. Walker’s projections, there will be 40 successful crosses. These will yield 14,000 seedlings. This result from 40 X 350 (in the middle of Dr. Walker’s 200 to 500 production number) would require the production of 467 flasks at thirty plants per flasks. Dr. Walker does not indicate where he will get the seeds for the 5,517 other flasks he intends to produce? At this point, one might say that Dr. Walker only said there was a potential for 5,984 flasks, so we should just do the math ourselves and understand that he will only make the flasks he needs. However, the lab cost on an annual basis is consistent with the production 6,000 flasks, not 400.

On the expense chart for San Damiano Orchids, it appears that only anticipated expenses in the third, fourth and fifth years are shown. The numbers on the chart of expenses match the expense lines on the pages marked third year, fourth year and fifth year. This is the first time I have ever seen sales increase by 40 percent without incurring even $0.05 incremental additional expense. Dr. Walker ‘s business plan shows an expense line for the first year of $52,000, and a second year expense line of $54,650, but no details are given. It is unclear which expenses Dr. Walker will or will not incur during the first and second years. I cannot find the $24,000 difference in static overhead between year one and year three.

Nowhere in any of the expenses is there provision for paid labor. This seems to imply that Dr. Walker intends to personally carry out every function in the nursery. Apparently, he will make all of the hybrids, harvest the seeds, sow the mother flasks, replate the seedlings to final flask, deflask the seedlings, pot them to individual pots or community pots, grow and nurture the plants to a saleable stage, and market them through the various channels described in his plan. Based on the projection that Dr. Walker will spend 200 days in the lab and thirty days away at shows, he will have 30 days a year to accomplish all of the non-lab and on-the-road show sales. This assumes 5 days times 52 weeks a year, for a total of 260 days. Based on this assumption, it does not seem reasonable that Dr. Walker can carry out all of the work involved by himself, but, as previously stated, nowhere in the expense chart is there a provision for labor expense. Even assuming the first and second years pass without any help, it is impossible to believe Dr. Walker will be able to operate at the projected high level of sales without any outside help.

I am at a loss to comment on the expenses of the greenhouse against the anticipated production. Dr. Walker never states what he plans to grow, only what he plans to sell. These will be two different numbers, as you will never sell all that you grow and you will lose some plants along the way. in other words, some plants will die. Dr. Walker makes no projection of these numbers in his business plan.

My conclusion is that Dr. Walker has not presented a cohesive business plan. He has placed words and numbers on sheets of paper that do not make sense. Nowhere does Dr. Walker attempt to establish that a market exists for the plants he intends to sell in the numbers he intends to sell them. The issue is not whether or not Dr. Walker is an AOS judge, but rather whether Dr. Walker is an effective and competent business person. He has not demonstrated competence in the business plan presented!

Part Two: Mr. Werther —Sentinel Orchids

In his third paragraph of comments on “paragraph 1” of the San Damiano business plan, Mr. Werther’s report indicates, “It is usual practice for commercial growers to take advantage of acquiring high quality plants from other growers and wholesalers for the purpose of growing the plants on to larger size for resale.” Apparently, Mr. Werther is referring to Dr. Walker’s purchase of plants for growing on. At first reading, I thought that Mr. Werther was discussing a sales avenue for Dr. Walker.

Mr. Werther’s next paragraph states that use of the internet sales channel and mail order is essential to reaching Dr. Walker’s target market.  We have already established that there is no value in being a judge in this line of sales, and Mr. Werther never contradicts this. Mr. Werther states, “it would not be unusual to reach 1000 accessing growers per month using this medium”. He gives no information regarding what one could reasonably expect sales to be as a result of 1000 orchid grower visits to the site. Since Mr. Werther’s report gives no indication of potential sales from the internet, I am using the only information available to me. Garden.com is the leading internet provider of plants (including orchids). Garden.com receives an average of 53,000 visits per day, or 1.6 million per month. Their 1999 sales were five million dollars, for an average over four hundred thousand dollars per month. That would be three cents per visitor in sales. Using ten times that number for Dr. Walker, and assuming he will get $.30 cents of sales per visitor to the orchid mall and related sites, that would mean gross sales of $300 per month, or $3,600 per year. From data provided, it appears that Dr. Walker intends to spend $5,500 per year starting in the third year on internet and advertising. In his third paragraph, Mr. Werther tells us the internet was irrelevant prior to 1996, according to his “source” at Antec Orchids (?). In Paragraph 4, Mr. Werther gives numbers. Dr. Walker’s sales at orchid shows will provide gross sales of “between $1200 and $6000.” The calculated average is $3600. Dr. Walker intends to sell at ten shows per year, giving gross sales of $36,000 from show sales per year. We are now up to $39,600 in sales per year, assuming Dr. Walker has orchids people want to buy. Please note that Mr. Werther has not indicated any number for internet sales, but has given guidance in his expert capacity that Dr. Walker can expect $36,000 in sales from the shows. According to Dr. Walker’s expense projection, he will have $16,650 in various expenses associated with selling at shows. Even with the huge margins Dr. Walker anticipates in his financial projections of selling at double his cost, Dr. Walker will enjoy only a $1,500 profit from his show selling activities. Gross sales ($36,000), less show expenses ($16,500), less fifty percent cost of goods ($18,000) equals a net profit of $1,500 for the year’s effort. All of the other projected revenue must then be coming from mail order. The mail order business is a very labor intensive activity, as it requires the handling of a great many small individual orders, one at a time.

In his comments regarding Paragraph 2 of Dr. Walker’s business plan, Mr. Werther correctly concludes that Dr. Walker must deduct 210 square feet if he does not have moving benches. Mr. Werther agrees with Dr. Walker that he can grow on more than one level. This is absolutely contrary to good horticultural practice and is a clear indicator that Mr. Werther is also an amateur grower. Mr. Werther calculates the number of plants Dr. Walker may grow if they are all in 3 1/2” pots. Dr. Walker will certainly not grow everything in 3 ½” pots. Mr. Werther further reflects that space for the under 6000 flasks is possible. Mr. Werther never calculates that Dr. Walker would consequently have 150,000 unnecessary plants in flask in his possession. On the potted plant section, Mr. Werther tells us 2766 X 9 = 24,900. This calculation is meaningless in the context of Dr. Walker’s business plan, since he states he will sell 4,500 3 1/2 “pots per year. In Mr. Werther’s Professional and Horticultural Information sheet, we learn that he has 1,200 square feet of green house space. We net that down to 960 square feet of available growing space. Mr. Werther also states that he has over 4000 plants. 1 must assume it would be close to the 4,000 number. That would be about 4 plants per square foot. This is less than half the density Mr. Werther allows Dr. Walker. Dr. Walker never gives us planting or growing cycle times in his business plan. Mr. Werther seems to believe that growing plants pot to pot “tight fitted” throughout the plant’s life cycle is a reasonable horticultural practice. This is further evidence of Mr. Werther’s amateur approach to ornamental production.

Regarding Mr. Werther’s reflections on Dr. Walker’s Paragraph Three, I agree that Dr. Walker can make 75 crosses per year and that 40 of them are likely to be viable. Orchid hybridizing is an extremely simple activity and takes very little time and effort to accomplish. Mr. Werther goes on to advise Dr. Walker that he could get a lot more seeds from his crossing than he is now anticipating. Next, Mr. Werther suggests it would be a good idea for Dr. Walker to mericlone his good plants. Indeed it would be a good idea, but Dr. Walker does not mention it in his business plan. Why does Mr. Werther mention this, unless to point out to us that Dr. Walker does not include it in his business plan.

Annual expenses

Mr. Werther’s statement that he has “reviewed the line items expenses under expenses and finds them reasonable” is indefensible. I pointed out earlier that there is no expense for the capital cost of the greenhouses or the lab equipment, and no depreciation. There is no production plan or schedule. The expenses would be related to such a plan. It is quite impossible to give an opinion of the expenses in the absence of this information.

Mr. Werther’s conclusions on damages

Mr. Werther’s last section on page four deals with his opinion as to the income loss relating to “negative information.” We are never told what that negative information is. The only negative information that would affect the success of San Damiano Orchids is a reputation for poor quality plants, failure to deliver as promised, or above market pricing.

The very first thing Mr. Werther tells us is that he “evaluates vendors on performance, quality of plant material and price.” That is how the market works. He goes on to say, “there are some buyers who may shun doing business with what they consider an anti­-AOS entity.  Mr. Werther never states that Dr. Walker might have a problem selling all of his plants.  He states that, if the plants are good and the price is right, he (Mr. Werther) could be a customer, and that some (an unquantified statement) may not buy plants from Dr. Walker. As a commercial grower, my company has hundreds of customers. We are restricted to a far smaller potential market base because we sell wholesale only. While we have hundreds of customers, there are thousands of potential customers that do not buy from us. The question is, will Dr. Walker have enough customers sell the plants he wants to sell. The determination of that will be what Mr. Werther described as “performance, quality of plant material and price”.

Conclusion

Neither Dr. Walker’s business plan nor Mr. Werther’s report on same include enough numbers. What numbers there are do not work. In my opinion, the business plan does not meet even minimum standards and requirements for a successful professional horticultural operation.

I have written this report based on the information provided. If further information becomes available, it may materially affect my opinions and conclusions.

Respectfully submitted,
    Kerry L Herndon
Kerry L. Herndon
Kerry’s Bromeliad Nursery, Inc.

            I had a call on Friday from Dennis Davies-Wilson and he had suggested that we might get together that weekend to start our joint project of writing a book, An Interview with Jesus in the Hot Tub.  I shared the total despair that I had experienced the previous weeks and that I wouldn't be a good time to be creative.  We did, however, decide that his being here with me would be a good idea.  I felt I really needed to have something a little more positive in my life and we agreed to take advantage of a performance of Mahler's Ninth Symphony was being performed at Popejoy Hall that very Saturday evening.  We did the concert and followed it with a very nice dinner.  It was just what the doctor might have ordered and Dennis' company was most appropriate considering his long time friendship and his particular involvement with my distressful and anguishing ordeal with the American Orchid Society.
            After Dennis left on Sunday morning I almost intuitively returned to my original state of deep depression and being so totally frustrated, I decided to write another letter in order to get some of my languishing thoughts put down on paper.  It seems that the only therapy readily available to me at any given time was the verbal expression of my inner thoughts.  This time it was addressed to Judge Black.  I wanted to express my total frustration with the legal system and the matter in which this system seemingly imposes such definitive restrictions on justice because of its inherent oppressive nature.  I wasn't sure if the letter would have ever been sent, but just in case I had decided to end my life, I wanted at least someone who might come across the document to know what I had encountered within the legal world.  It had become particularly disheartening that in many instances the betrayal of the system of justice was even more discouraging than much of the treachery that I had endured within the American Orchid Society.

March 13, 2000

The Honorable Judge Black
Federal Court Building
Albuquerque, New Mexico 87102
 

Re:  J. Lamah v. Aldrich, et al.
        U.S. District Court No. CIV 98-1403 BB/WWD

Dear  Judge Black:

I have become so terribly desperate of late and so totally frustrated with the entire dimension of this lawsuit that I felt I needed to put down all the current causes, reasons and situations that are hounding my most inner being and causing me to consider leaving this horrid world that I live in.  I feel like I am reaching that final point of self-destruction that I had so prophetically alluded to in the opening of my first book.  "This literary piece could no doubt qualify for the Guinness Book of Records as the longest suicide note ever written.  Providing, of course, that at its conclusion I have actually undertaken that final effort and ended this trying existence."  The other noteworthy delineations in both the first and second books are the words of dedication of the two volumes "To: The Oppressed Who Too Often Suffer In Quiet Desperation" and “To: The Enslaved Who Ominously Toil In Utter Hopelessness.”  I never had the idea that I may have been addressing those profound sentiments to myself as well.  I had the totally mistaken idea that perhaps an educated white male mainstream American citizen might have successfully insisted on fair treatment within this archaic justice system despite his un-chosen gay life-style.  No way!  Justice still seems to be preserved only for those who operate within those biasedly established rules of law—written and unwritten--notably by those in positions of power and all too willingly subscribed to despite their dire consequences on some individuals.
          The most notable violation of my inalienable rights is the suppression of speech.  May I remind you that our First Amendment Rights to free expression was not written just to permit pornography, but every citizen's unassailable right to protest the actions of government WITHOUT the threat of reprisal.  Ms. Shannon, the council for the Defense, seems to object to my execution of that right.  She has tried to indict my good character based on my implying that the actions of Magistrate Judge Deaton are bigoted.  She failed to have given the totality of his reprehensible behavior during our Scheduling Hearing.  He had enthusiastically introduced the idea that he was willing to take on the proceedings of the entire case himself.  The three other lawyers that were present briefly discussed this and they (not we!) decided that this was an acceptable proposition.  By that time, I had already taken exception to the rather negative demeanor of the Judge and had the distinct impression that he was of that school of thought that possibly didn't approve of either my life-style or the fact that I was a Pro Se litigant.  In either case, an unbiased judge should show impartiality to the two opposing sides of a case.  I, having my own right to object, did so.  That would have been fine, but in obvious retaliation to the free exercise of my right, the Judge later on addressing another issue in the case, emphatically and doggedly told me in an effort to deny my rightful input, "I'LL DO THE TALKING, AND YOU DO THE LISTENING!"  I found his rather condescending demeanor and tone of voice very objectionable and particularly since he had continued to permit the other lawyers present to freely speak their own piece.  I felt just like that proverbial "Nigger" of some fifty years ago that had no say or vote in this supposedly free society.  Of course, sometimes we gays aren’t treated with any more respect as evidenced by the need for “hate crime” legislation.  It was that ominous feeling of oppression and knowing I had no power in that situation that I had refrained from saying anything further.  (that “quite desperation”)  I did rightfully express myself on this situation in the second book and certainly on my own web site because I know that the citizens of this free country should know the truth of the matter.  These hidden-from-the-public displays of contemptible behavior on the parts of those who occupy the benches of our judicial system should be fully exposed for their irreprehensible contribution to the continuing injustice perpetrated on so many disenfranchised citizens.
          Ms. Shannon, on our first encounter that was by telephone, was very typically condescending in her tone of voice and doggedly suggested that she was going to win this lawsuit in the same manner that she had previously prevailed with so many other poor Pro Se litigants.  She immediately suggested that some of the reasons for her infrequent lack of any success that was of no fault attributed to her, was that she may have been simply misinformed by her own clients.  Giving her the benefit of the doubt,  I have no objection to a good fight, but her non-professional approach and tactics became even more apparent as we proceeded.  Her first gross non-professional act was lying in court to your more-than-once-repeated question of "Who has the final say in this man's elevation?"  Her final retort was essentially: "The Committee, but they are not part of the American Orchid Society, they only use their name!"  Even people unfamiliar with the structure of the American Orchid Society found her retort pathetically desperate and certainly a gross misrepresentation of the actual facts (A lie!).  She later added insult by suggesting to you that the Court should not afford me any concessions because of my Pro Se status because I had sought the council of other lawyers (as research consultants), and that I should be held to the higher standards required of lawyers.  This wasn't at all objectionable to me except that she implied that I should be held to her standards, which she had already demonstrated to me that were anything but ethical.  Roy Black is a close friend and was my littler ATΩ fraternity brother and we have specifically discussed the "the right of every citizen to the very best defense available," but we also agreed that the defense should not violate any ethics or rules of law in providing that defense, despite the fees (prostitution) paid!
          It was later that in another telephone conversation with Ms. Parden that I suggested that we get together and discuss the possibility of settling the case.  I might add that this requested process is part of the instructions of your Court as preparation for the scheduled Settlement Hearing.  Ms. Parden refused to meet with me and bases her refusal on what she considered as the fact that there is no merit to my case.  She had already attempted to indict me with the label of being unwilling to settle the matter without the Court and it appeared that she was only attempting to once again cast an unfavorable light on me.  I guess that's her job?  She would have no doubt in my mind latter told the Magistrate Judge that it was I who had avoided pre-hearing attempts at settlement.  When anyone acts in direct defiance of the rules and performs in a dastardly manner essentially for monetary gains, I descriptively call that misconduct prostitution.  Those who maintain the employment of such individuals are often referred to as pimps.  In my book I had referred to her employing councilors as "legal pimps."  As a literary expression, I don't particularly see anything defamatory by the commonly employed use of these rather common terms.  I don’t see lawyers as being beyond reproach or above the law, even if they are to offer “the very best defense to their clients” that money can buy.
          To further explain my disbelieving position that Ms. Parden often acts in an unacceptable and possibly non-professional manner, I was appalled at her questionable behavior involving one of my witnesses.  When I arrived home on the night of February 9, 2000, there was a desperately sounding message on my answering machine from Bill Heath who had earlier that day received a threatening call from Ms. Parden.  She was seeking a sworn statement from him that essentially would have him deny all that I had claimed that he had previously and freely reported to me.  See the attacked sworn statement that Bill Heath made that night.  He had been instructed to not call me and had it not been for his older partner's thoughtful persuasion, Bill would have never called.  The resultant sworn statement of Bill Heath initially written by the Defense is an extorted distortion of the truth and I do not fault Bill Heath for having acted under such inappropriate circumstances and duress.  What is even more disturbing is the ultimate response of my own council.  He had initially asked Bob Foster to research the law and find some precedence for filing a complaint against the Defense.  Apparently there was nothing substantial in the law and under his own perceived form of legalistic oppression, Mr. Romo didn't wish to prejudice the case with the Judge by filing an unprecedented complaint.  Now, of course, Ms. Shannon is using her ill-gotten sworn statement from Mr. Heath as part of her documentation for a summery judgement.  I have been instructed by Mr. Romo to not write any letters of protests and I understand his rightful concern that such letter writing in this current atmosphere of denial of free expression is too often used only to indict the writer.  If the Court is not made aware of these awkward and questionable situations, then these clear acts of misconduct are then construed as acceptable.  If they are, I am appalled at, but not at all surprised, at the gross miscarriage of justice.  No wonder there is so little respect for our legal system and the widespread questionable misconduct of lawyers.  I have the greatest respect for my own lawyer with the exception of his tolerance of such misconduct on the part of the Defense, though I fully understand his complacency. One of the very specific reasons for my having eventually filed this lawsuit as Pro Se, was my not being restricted by the ill-conceived professional courtesy of not indicting one's fellow lawyers for procedural misconduct that they themselves may wish to employ at some future date.  The other built-in scenario supporting the miscarriage of justice is the judicial oppression that is felt by lawyers who don't wish to protest some of the oppressive rules of law or any conduct that may be employed for the sake of justice before a Judge that they feel the Judge may possible find objectionable.  No matter how you slice up this system of justice, it remains totally oppressive and most notably to the victims who should benefit from “equal protection under the law.”
          Mr. Romo suggested to me, only of late, that I should not now seek to "exhaust my administrative remedies" by contacting the EEOC BECAUSE it might have the wrong appearance to the Court.  In the course of exploring the American Disabilities Act's possible application in this case, it was rightfully noted by the Defense that I had not "exhausted my administrative remedies" within the 300 days as a Statute of Limitation.  For the specific allegations in the original filing that is appropriate.  BUT it was less than 300 days ago (June 19, 2000) that I had been officially "kicked out" as a student judge by the Great Plains Judging Center for reasons definitely related to this lawsuit.  I am under the impression that the EEOC has the only authority to suggest/decide whether this particular act violates the ADA.  I fully understand Mr. Romo's edict that I NOT SPEAK to anybody about this including the EEOC because it might have the wrong appearance.  I'm not sure what unwritten rule this all addresses, but I am at a loss as to what to do.  Everybody has pointed the finger at me for having originally gone beyond the 300 days, which nowhere had I been made aware of.  AND now that there is the possibility that the American Orchid Society has inadvertently provided me with another window of opportunity, I am specifically instructed to not take advantage of the situation, and so emphatically told so because it just may offend you and the Court.  What am I to do when my own legal council, playing within his perceived interpretation of proper conduct as viewed by the Court, seems to be failing to protect my own rights?  Tony had even suggested that I might bring an action against the original lawyers in the suit for not having advised me of those 300 days.  I found that suggestion rather hypocritical in light of his not having made me aware of this limitation when we first addressed my