Notes from a conversation with the Chief Justice on March 3, 2015;
Chief Justice, Let me ask you a few questions about our Judicial System in Texas.
[Note: COA is Court of Appeals. CCA is Court of Criminal Appeals = Supreme Court but with criminal case jurisdiction. Our Supreme Court does not have jurisdiction (authority) to rule on criminal cases. By extension the Appellate Courts do not have jurisdiction to treat a civil case as a criminal case!]
I said the question of permission to sue the State and State liability are such issues, are they not?
Answer: Yes, Statutory Law mandates an expedited review.
[MY NOTE: The AG had a duty, imposed by Law, to appeal the finding of actual innocence established in the trial court if this was going to be argued in a second appellate review as an factor determining legislative permission to a citizen for suit upon the State. The AG chose, instead, to stipulate to liability and, by extension, to suit, because these issues had already been settled to finality by prior proceedings including the prior appellate review of the case in 2003.]
Can a COA overturn a finding, implied by operation of law, by the CCA? Answer: NO.
Can the 3rd COA overturn or reverse findings of fact and law, or the orders of, the 14th COA? Answer: NO.
Can a District Court, in a Civil Trial, overturn or reverse finding Law and order of Acquittal by a COA? Answer: NO.
As you know; the accused in a criminal case is presumed innocent at trial, but if the verdict is guilty the burden shifts to the defendant to prove their innocence on appeal. The presumption is guilt. He disagreed with the presumption of guilt. I said; OK, that's good to know, but in a Direct Appeal of a conviction the burden is now on the defendant and the burden the defendant must meet is very high. Even higher than beyond a reasonable doubt. Is this Correct? Answer: Yes.
[MY NOTE: As any who practice criminal case appellate law in Texas knows, the burdens is "beyond a reasonable doubt in the light most favorable to the prosecution". For a finding of 'legal insufficiency of the evidence' the standard is even higher this it is for a finding of factual insufficiency of the evidence. A legal insufficiency finding requires that the COA look only at evidence that favors conviction and ignores evidence that does not. That is why the Texas CCA has ruled that 'actual innocence' and 'legal insufficiency of the evidence' are synonymous.]
And if the defendant meets that burden and then brings a civil suit upon the State, in the civil suit the burden of proof is by a preponderance of the evidence, a much lower standard than in a criminal case, is that correct? Answer: Yes.
Well, then, if the State, as defendant in a civil case shifts the burden to the plaintiff to again prove their innocence, when they had already proven it, to the satisfaction of a COA and the CCA at a standard of beyond a reasonable doubt, it would seem obvious they can meet, and in fact already have met, the standard of proving it their Actual Innocence by a preponderance of the evidence, would it not?
He paused, and appeared a bit stymied. The logic is infallible but it stymies those who, often without a conscious awareness of it, are bias against anyone the STATE, by and through those trusted to act in it's name as prosecutors, or in the Office of the AG, choose to accuse of committing a crime. After thinking about it for a while he acknowledged his agreement and then turned to someone else standing by and initiated a conversation with them.
This reveals the flaw in the act of 2001 that granted permission for victims of prosecutorial crimes to bring a suit upon their employing entity, The State, for Wrongful Imprisonment. By imposing upon the plaintiff the burden of proving actual innocence in a civil venue the civil case was turned into a re-trial of the criminal case. An opportunity to re-victimize the victim of government crime. Maybe as a means to oppress them and keep them from coming forward.
In the case of an acquittal for legal insufficiencey of the evidence the relevant facts and applicable law had already been fully litigated in the criminal venue and reached a final conclusion in that venue. But for the difference in the words utilized the substance of the finding was a finding of Actual Innocence. This was in the criminal venue and now not subject to any new review or reversal in a civil venue. Nor by any other court in the Land of Texas or in the United States!
(Well, that is 'lawfully' subject to any new review or reversal. But government actors and agencies, including courts, do act contrary to the law.)
Thus, the question of actual innocence was not within the purview, the jurisdiction, of the 3rd COA in 2006. Actual Innocence had already been established. The statute involved did not require the use of the exact phrase 'Actual Innocence' when relief from a conviction was granted with an acquittal, for the court house doors to be opened.
The foregoing is obvious to any who know the structure of our Courts and has the capacity to be objectively reasonable. They reveal the truth that the Attorney General did not have legal authority for a second appeal. And the 3rd COA did not have legal authority to take up that second appeal. The question of permission to sue and the question of liability required, by law, an expedited review and both of these questions were answered in the first appeal that came back in favor of this Citizen.
Even though they have a legal and professional duty to know better there are Attorneys in the government that give the impression that a lone Justice of the 3rd COA can write a memorandum opinion that reverses the facts and reverses the law established by prior Judgments of equal appellate court and courts above the appellate.
As Attorneys who practice law in this area know. So, too, do the Assistant Attorney Generals know, and have a duty to know, the phrase 'legal insufficiency of the evidence' and order of 'acquittal' is synonymous with a finding of Actual Innocence. They have the same meaning. The AG, through attorneys that act in his name, has a duty to know this. See legal citations from West Law.
Unfortunately, there are Attorneys employed at public expense that will choose to play games with words. They do so for the purpose of deception. They seek to deceive Judges, and those in other divisions of government such as the Legislature, and to deceive the public, to obtain a 'win'. To be able to claim they 'won' a case. So they can feel they defeated the adversary. Even if the adversary is the public as represented by only one citizen. Thus, with out conscious awareness of it, they are waging a war against our Constitution and against the people of Texas in their zealous desire to 'win' at all costs and by any means.
I am one of the people they are paid by. I am one of the people they have a duty to serve with integrity. It has been shocking to encounter the callous disregard they have for the Rights of my people, our Constitutions and Laws, and the harm done to me, my family, and my life. Their "win" is all that matters to them, even if obtained by fraud.
Attorneys, including those employed in our Legislative Division, and in our Executive Division, have a duty to know the structure of our courts and the limits on the powers of these courts and those serving therein as Judges, Justice, and Court Officers. They cannot plead ignorance of the law. Nor can they lawfully misrepresent the law. But they sometimes do. It may be unintentional. Experience has proven there are many people, including very intelligent well educated people, who are so blinded by unconscious bias they cannot see the truth no matter how brightly lite. In that case, they are decieving their ownselves as well as others. It may be unintentional. But it is illegal and, because of their professional status, it constitutes gross negligence for which their employing entity is strictly liable.
The experience of Jesus is an example of the conviction of an innocent person. His example and his teaching instruct forgiveness for those who harm us and persecute us with their unconscious bias. But he also showed, and taught, that silent acquiescence to the bias and prejudice of others is a sin.
Duty to Correct: There remains the duty imposed upon all licensed to practice law in our State, including those employed as Justices, Attorney General, and as Counsel in our Legislative Division, to correct misrepresentations of law and fact. It is a duty that exist independent of the law but is, in fact, stipulated in law binding upon them. See Writ to Appellate Court
LAW GOVERNING ATTORNEYS
Texas Disciplinary Rules of Professional Conduct
Rule 3.03 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.
(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.
The remedial legal measures - that is; the payment of the Final Judgment - remains possible. Our Legislature is a 'Tribunal'. All that is required is for the Attorney General to acknowledge that the Legislature can make an appropriation for the payment of it. He needs to let them know that he is not opposed to the appropriation as the question of whether or not it is a legal obligation of the State is a question for the Legislature.
Who is 'the client'? Is it the Legislature? Is it the people of Texas? Is it not both? Does it not include me, A Citizen - one of The People of Texas - as a victim of government malfeasance that began 21 years ago?
I have tremendous respect for Jeff Rose, current Chief Justice. This recording was necessary because if it comes from me it is dismissed. If it comes from him it may be given some thought and consideration. The purpose for recording this conversation is to correct what is either a misrepresentation of fact and law from attorneys employed in the Legislative Division of our government, or a misrepresentation of law and fact from attorneys employed in our Executive Division, the Office of the AG, or both. And, as licensed lawyers, as Attorneys, our Justices also have a duty to correct any misrepresentation of Law and Fact they may inadvertently portray. The misrepresentation of my Actual Innocence must cease.