Saturday, January 14, 2012

Any Thing You Say Can and Will be Used Against You.

Especially if a judge has to save his or her own ass.

What happens if you enter a settlement conference in a judges chambers, that judge makes threatening statements to you in an effort to force you into a settlement?
Just so happens such an incident was set forth within positive case law.  Garcia v. Berkshire Life Insurance Company ofAmerica, 2010 U.S. Dist. LEXIS 64457, at pages [*13] to [*14] says:
"Several times during that settlement conference, Magistrate Boland told Plaintiff, Mr. Silvern [plaintiff's counsel] and me directly (and, according to Mr. Silvern, also told Mr. Silvern in separate "side" meetings) that Plaintiff faced the probable dismissal of her case after the Motions Hearing scheduled the following day if she refused to accept a settlement of the case that day that would require her to relinquish her Berkshire  Life "Limited Edition" Executive Income Replacement policy rights. . . .

Plaintiff was very emotional and cried often during the settlement conference in response to Magistrate Boland's threats regarding the dismissal her case unless she agreed to settle and forfeit her disability policy rights to lifetime benefits. . . . Magistrate Boland continued to urge her to forfeit the lifetime benefits guaranteed to her by the Berkshire policy in order to avoid dismissal of her case, remarkably using the following metaphor to support his argument: "When you are in bed with snakes, get out of bed." Even so, to the obvious chagrin of Magistrate Boland, Plaintiff insisted that the dismissal of her case was not justifiable and that she would not agree to the forfeiture of her lifetime rights under the policy. Thus, no settlement was reached."

So, if we take the above as being true, and again there is decisional case law supporting that facts alleged in an affidavit supporting a claim of "bias or prejudice" must be accepted as  true.  United States v. Burger, 964 F.2d 1065, 1070 says: "Under § 144, the affidavits filed in support of recusal are strictly construed against the affiant and there is a substantial burden on the moving party to demonstrate that the judge is not impartial.  Conclusions, rumors, beliefs and opinions are not sufficient to form a basis for disqualification.  Under § 455, the test is "whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." Id. Moreover, "[t]here is as much obligation for a judge not to recuse when there is no occasion for him to do so as there is for him to do so when there is.
Okay, we now appear to have a situation where the judge has put his of her foot in his or her mouth and an attorney has had the courage to tell the truth.  So how will such a judge get out of such a conundrum?  Well, once more we have to turn to positive case law as of Jan 13, 2012. 

Garcia v. BerkshireLife Ins. Co., 2010 U.S. Dist. LEXIS 64457 at pages [*18] through [*20], wherein this judge back-pedals, and uses the plaintiff's own misguided statements against her, by stating in the opinion that:
Significantly, the settlement conference at which all of these threats and improper statements are alleged to have been made occurred on October 30, 2007. However, no mention of the asserted improprieties was made during the evidentiary hearing on the Motion for Sanctions which occurred on November 14, 2007, see Transcript of Proceedings, November 14, 2007 [Doc. # 301, filed 12/13/2007] (the "Trans. 11/14/2007"); no mention of them is made in the plaintiff's objection to the Recommendation filed December 26, 2007, Plaintiff's Objections [Doc. # 304]; no mention of them is made in Plaintiff's Cross-Motion to Amend Findings filed January 22, 2008 [Doc. # 314]; no mention of them is made in the Plaintiff's Motion for Relief From Order filed June 9, 2008 [Doc. # 358] (the "Rule 60(b) Motion"), filed pursuant to Fed. R. Civ. P. 60(b); and no mention of them is made in the plaintiff's Opening Brief filed in the Tenth Circuit Court of Appeals on June 27, 2008 [Cir. Doc. # XXXXXXXXXXX].

To the contrary, the plaintiff testified in November 2007, at the hearing on the Motion for Sanctions, as follows:
Q (By Mr. Silvern [plaintiff's counsel]) Is there anything else you'd like to tell the Court regarding this motion for sanctions and your opposition to it?
A (By the plaintiff) Yes. I would like to say that—that a person that I trust very much gave me some wisdom that says when a person is in bed with serpents, you should get out of bed.  And the allegations and the attacks to me, upon me, by the defense when they know—and they're based on their own experts—the extent of my disability admittedly is an act of—of just of serpents.
Trans. 11/14/2007 at p. 15 line 23 through p. 16 line 7.

Mr. Nobel in his affidavit quotes me as telling the plaintiff at the settlement conference that "[w]hen you are in bed with snakes, get out of bed." Nobel Aff. [Doc. # 431] at p. 10, ¶5.  Although the statement now is used as a basis to seek my disqualification, at the time of the events in question, rather than being a basis for criticism, the plaintiff indicated that she trusted me "very much" and characterized the statement as "wisdom."

At the risk of perjury I declare that the copy I made of the above from a computer having access to Lexis does not read the same.  First the copy I have shows the statements of J.M. Nobel, who says in the affidavit that he was co-counsel for the plaintiff.  Secondly the copy that I have gives the docket number as [Cir. Doc. #01011987255], not as it appears above, [Cir. Doc. # XXXXXXXXXXX].  Now this could be due to the making it available on the internet or some other factor, but the deletion of Mr. Nobel's statement shows this writer that something is being hidden.  The judge wants us to believe that this plaintiff trusted her and took the judges statements as wisdom.
 What's the learning? Watch what you say, where you say what you said, and in what context you say it? Huh, What?  Okay, I was [FN] with you, but here's some wisdom for real, "Never call a judge "Your Honor" till he or she proves to be honorable.  But, How will you know?  That's why we are here so you can be the judge...think about it.  I am putting something special together for you that will knock you socks off, stay with me, leave comments, and tell more friends.

Thank you, The Casino Gaming Oracle!

Black History Month 2012 reigns in and all still do not have equal protection of the laws and meaningful access to the Courts of these United States of America.

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