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Actual Innocence,

The Two Definitions of

Two OPPOSING definitions exist. One Substantive and the other Procedural. The Substantive reference is concerned with innocence or guilt. The Procedural reference is concerned only with when a person proves their innocence. The litigantors in the Office of the Attorney General referred to this as request for a 'technical definition' and the appellate court Justice that devised this referred to is as a "procedural framework". 

A Substantive Definition:

A Common Meaning / Lay Person's Definition

The common definition assumed by common people is one of substance. That is, is a person “really” innocent? Or are they guilty but the State could not meet it's burden of proof beyhond a resonable doubt, due to an absence of facts to prove it? This is a question of the substance of innocence. So maybe they are guilty but it just cannot be proven. Thus, due to a lack of facts, there innocence might not be actual (meaning, of fact). Of course, if all facts relevant to the elements of the crime are known then the people will consider the common definition of actual innocence to apply. That is the lay persons's idea of actual innocence. There are no question of facts in Heimlich's case.

Constitutional Error / legal insufficiency of the evidence

The lay person's concept of actual innocece is consistent with one of the causes for a finding of Actual Innocence created by the United States Supreme Court and the Texas Court of Criminal Appeals. These Courts refuse to speculate about what constitutes a “wrong” that would subject a person to prosecution by the government and criminal penalties. They realize it is up to the people, by and through their elected representatives in their Legislature or their Congress, to make a “wrong” a criminal offense by passing a Law that makes it so. If all facts are known but an examination of the law reveals there was no violation of law then the innocence of the accused is actual. The conviction was the result of the failure of the prosecution and/or trial judge to provide due process of law. This is what the US Supreme Crt and TX CCA refer to as Actual Innocence. But due to Constitutional Error it was not discovered at or before the trial. In the reversal of a conviction on direct appeal the grounds are referred to as 'legal insufficiency of the evidence'. This is also known as  legal evidence.

Error revealed by New Evidence / factual insufficiency of the evidence

The other cause for a finding of Actual Innocence created by the US Supreme Crt & TX CCA involves the discovery of new evidence. Referred to as fact evidence. Because of the new evidence, usually such as that revealed by dna or other developments in forensic sciences, there is now a lack of evidence sufficient for the prosecution to meet it's burden of proof beyond a reasonable doubt. Unlike the propensity of some prosecutors and the general public, the Justices in our highest courts wisely refuse to speculate about facts that may be but that cannot be proven. Such speculation reveals a lack of objectivity. Such speculation reveals a bias, a prejudice, against those who have been accused of violating a penal law. Such bias, prejudice, and the resulting speculation may be prevelant among lay people. But it is unacceptable in a society that values Liberty, the Rule of Law, and Equal Justice under the Law. The vast majority of the convictions that have reversed, for actual innocence, were because new evidence. In a reversal of a conviction on direct appeal these grounds are refered to as 'factual insuffiency of the evidence'.

Actual Innocence is a phrase used in a Writ of Habeas Corpus to re-open the courts for review of a conviction after the conviction was upheld on direct appeal and no other reviews are available via any other means. The Writ, and the Court that reverses the Conviction, might not use the actual phrase "actual innocence", but the substance of actual innocence due to constitutional error or new evidence was revealed in the pleadings. The same is true on every reversal of a conviction that comes in a direct appeal or review obtained by means other than a writ of habeas corpus.

Procedural Definition:

The procedural definition was devised when the Office of the Attorney General of Texas asked the Appellate Court for a "technical" definition of the phrase 'Actual Innocence'. Their objective was to deprive those whose actual innocence was revealed on Direct Appeal of the already limited restitution the Texas Legislature provided in staturtory law as 'Compensation for Wrongful Imprisonment'.

The Texas Third Court of Appeals (3rd COA), through an opinion written by Justice Robert Pemberton granted the request of the OAG and created an entirely new definition of the phrase. A definition that is a determined by reference to procedure in the court system without any regard to substance.

In this jurisprudential context, the legislature's use of the phrase "has been granted relief based on actual innocence" thus connotes both a specific standard of proof and a procedural framework through which such relief is obtained--a writ of habeas corpus  See State v. Young

"ultimately obtained acquittal on grounds of legal insufficiency of the evidence in his direct appeal. We conclude that it does not include such claimants, but instead manifests the legislature's intent to limit chapter 103's waiver solely to claimants who have obtained habeas corpus relief".    See State v. Young

we must conclude that the legislature intended to provide a remedy solely to the wrongfully convicted who cannot, for whatever reason, obtain relief through available direct appeals. See State v. Young

This definition has absolutely nothing to do with whether or not the person seeking compensation is guilty or innocent, actual or otherwise. Under the "procedural framework" definition a person could be unquestionably innocence in every respect, and yet still be excluded from their definition of Actual Innocence because their definition is determined solely by when, in the course of the legal proceedings involved (the "procedural framework"), their Innocence is found to be Actual. And so it is in the Heimlich case.

The Texas Supreme Court, by acquiescence, has accepted a definition of Actual Innocence that is contrary to the definition of the United States Supreme Court and the Texas Court of Criminal Appeals in the case of Young and Heimlich. As a Court with jurisdiction over civil matters alone, it is a court that does not have legal authority to define what constitutes guilt or innocence. As a Civil court is can only pass judgments on who is liable and who is not liable. By guilt or innocence is meant the imposition of penal penalties, such as fines and imprisonment. By liable or not is meant who does or does not have to pay another party for damages which might include the intangible as well as the tangible.

The 3rd COA in 2008 reversed it's Opinion and Mandate of 2003. In 2008 it decided that if Actual Innocence was determined on Direct Appeal, then the person making the claim for compensation for wrongful imprisonment under the Texas Statutory waiver, does not fit the definition intended by the Texas Legislature in 2001 when it wrote the act. The Texas Supreme Court, by refusing to hear Heimlich's Petition for Review has refused to correct the conflict and contradiction between the 3rd COA in 2003 and the 3rd COA in 2008.

Thus; two OPPOSING definitions exist. When others hear someone from the OAG (office of attorney general), or elsewhere, say Heimlich's innocence was not actual they assume it is a reference to a substantive definition when it is a reference to a procedural definition. The procedural definition has absolutely nothing to do with innocence or guilt.

A victory for those who war against our constitution

from behind a position of public trust

When others hear someone from the OAG (office of attorney general), or elsewhere, say Heimlich's innocence was not actual they assume it is a reference to a substantive definition when it is a reference to a procedural framework that has abolutely nothing to do innocence. 'Actual Innocence' arrived at through a "prodecural framework" is contrary to the common meaning definition. It is, as well, contrary to the definition created by both our US Supreme Court and our Texas Court of Criminal Appeals. Their assertion of a lack of actual innocence is misleading. It is a misrepresentation of the Law. It is intended to oppress Heimlich as a means to maintain what litigators in the OAG consider a "win". It maybe a win for them but it is a loss for our Constitution and the Rule of Law. It is a loss for the cause of Liberty. They may be proud of how cleverly they evade, circumvent, or pervert our Constitution, and the Laws made in pursuant thereof. But they damage the reputation of their profession and the reputation of the entity in which they are employed.

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