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INFORMED CITIZENS
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EXPOSING THE FRAUD, DECEPTION, & LIES
of Justice Robert
('Bob') Pemberton in his Memorandum Opinion
on the Heimlich lawsuit
upon the State of Texas, July 31, 2008
The memorandum opinion if void. It is
a legal nullity. This should be obvious to any with a license to
practice law and any who knows what they should have learned in High
School. As Chief Justice
Rose confirmed in recorded conversation:
Justice Pemberton could not
legally or ethically reverse the judgment of 1999 by the
highest court in Texas on criminal matters. That is, the Texas Court
of Criminal Appeals. It is the only Court in Texas with jurisdiction
to define actual innocence and that court confirmed the finding of
actual innocence in Heimlich's case.
Justice Pemberton could not
legally or ethically use his position in the Texas Third (3rd)
Court of Appeals to reverse in 2008 the Judgment of Acquittal
(finding of actual innocence) of the court of equal standing, the
Texas Fourteenth (14th) Court of Appeals.
Justice Pemberton could not
legally or ethically use his position in the Texas Third (3rd)
Court of Appeal in 2008 to reverse the Texas Third (3rd)
Court of Appeal unanimous full panel opinion of 2003 that had been
followed by a Mandate after time for review by the Texas Supreme
Court, establishing liability & permission to sue (aka
subject-matter jurisdiction for the lawsuit).
Justice Pemberton could not legally
or ethically imply a civil trial is a criminal trial to
prejudice the public against the plaintiff as a means to commit a
theft of the plaintiff's $660,000 Final Judgment from a trial where
he proved the value of his property unlawfully taken by the
government exceeded that value.
Justice Pemberton could not
legally or ethically violate the Law of our Texas Constitution
that requires a minimum three (3) Justices on a panel to jointly
review cases brought before them.
But he did. And to date he has not had the courage and
integrity to take the remedial measures that law and ethics require. And
to date none have had the courage or the honor to hold him accountable.
Complaints to the Commission on Judicial Conduct, the State Bar, and the
Legislature prove that some positions of public trust in Texas are
exempt from the law and ethical obligations so harshly imposed on the
subjects of Texas government (elsewhere they would be citizens of a
State governed by the Rule of Law. In Texas the people have been
relegated to the status of subjects).
Absurd Justification and Excuse
The absurdity of the justification
used by the government of Texas (aka the State of Texas), acting through
prosecutors in the criminal prosecution of Heimlich, and then used by
Robert (Bob) Pemberton to cover-up and excuse their illegal and wrongful
acts is obvious. That is; Obvious to any but those who are too blinded
by titles given to people employed at tax-payer expense in positions of
public trust. Many people have an average or less than average capacity
for reason. Difficulty with algebra is one of many indicators. Many
people have average or less than average ability for observation and
comprehension. Unfortunately those lacking the ability to be unbiased
and objectively reasonable make their way onto juries and into the
Offices of the State Legislature. Some even become Prosecutors, Judges,
or maybe even a Justice. But his educational background reveal his
fraud, deception, and crimes are intentional. I pray enough of average
and better ability will review this matter so that our Texas
Constitution, and their Law, will be preserved, protected and defended
from the assault of Robert (Bob) Pemberton.
Under the theory of the government
prosecutors, and used by Justice Pemberton to excuse their unlawful
acts, the employee owns the business in which they are employed. All
revenue to the business is owned by the employee. This title of
ownership gives the employee the ability to tell the government of Texas
they fear the will not get paid on payday. On the basis of this fear the
government of Texas can then seize (take) property from the business.
Now with the property of the business in hand the owner, relegated by
the government to an employee of those he employed, is labeled a thief.
The property taken by the government is then presented to a jury as
proof of his theft. The jury so blinded by the presumption of competence
and integrity of those given a title of prosecutor and even more so one
titled judge wearing a black robe implying religious authority, they
follow their instructions to crucify the victim of government
malfeasance.
Their theory is identical to that of
Karl Marx and is the foundation of communist philosophy. Jesus was is a
notable victim of a similar fraud prosecutors in his trial used to get a
jury to demand his crucifixion.
Pemberton writes in his memorandum
opinion, in paragraph 22:
The subject matter of Heimlich's
takings claim is $5,050 in funds-representing the
amount of the disputed commission check-that were seized from Heimlich's bank account in
connection with his criminal prosecution. The funds were seized
pursuant to a warrant, signed by a Harris County district judge, and
were deposited into the court's register. ....
Heimlich characterized the seizure of the funds as actions as
theft of his property under color of law and testified that he never recovered them.
Beyond this the record is silent regarding the Harris County district court's ultimate disposition of
the seized funds in light of the competing claims of ownership apparent in his criminal
case. Contrary to Heimlich's understanding, the Fourteenth Court of Appeals did not decide that Heimlich owned these funds as opposed to the "piece of paper
called [the commission] 'check Heimlich, 988 S.W.2d
at 384-385.
THE FOREGOING IS THE MOST OBVIOUS AND EGREGIOUS
MISREPRESENTATION OF ALL
There never was any "competing claims of ownership".
The alleged victim testified that Heimlich was, and is, the owner!
See the official court record.
Justice Pemberton intervenes as counsel for the defendant government
rather than as an impartial judge to devise this "competing claims of ownership"
defense to the unlawful taking of Heimlich's property valued by Final
Judgment at over $660,000. Any question of ownership of what was seized
by the government, as acknowledged by Pemberton from Heimlich's bank
account, was conclusively and finally determined in the
criminal case and was the very grounds for the relief from conviction
with a finding of actual innocence (acquittal)!
On page 4 of Pemberton's memorandum opinion he quotes from the
Opinion of Justices in the Texas Fourteenth Court of Appeal upon their
judgment of acquittal (finding of actual innocence).
"Heimlich remained the only person
with a legal ownership interest in the thing of value the check
signified - the order to pay $5,050".
Pemberton's statement in paragraph 22 contradicts, is the exact
opposite, of the quote from the Judgment of the Fourteenth Court of
Appeals that appears in Pemberton's own memorandum opinion in paragraph
4! Pemberton diminishes the understanding and deflects the readers away
from the understanding of others by i implying it is only "Heimlich's
understanding". It is the understanding of:
The alleged victim,
The Justices of the
Texas Court of Appeals, 14th,
The Justices of the Texas Court of
Criminal Appeals,
And the Judge of the Texas District Court in Austin,
that Heimlich is the owner of the $5,050 in funds taken from Heimlich!
Only Pemberton does not understand, or feigns a lack of
understanding that he projects onto Heimlich. Apparently as a ruse to
deceive others so that Pemberton can deprive Heimlich of Justice.
Even the Attorney General
understood Heimlich to be the owner! The Assistant
Attorney General wrote in her brief that Heimlich 'owed' (was indebted
to pay) a commission to the agent (complainant). A statement Heimlich
took issue with as clearly noted in the court record and submitted to
Justice Pemberton. See it here. There
is a big difference between owed ("owed", having a debt, or obligation,
to pay now - as opposed to in the
future "owe") and own (having title to, a right to possess, manage,
control).
Pemberton, as an Attorney and as a Justice, has a duty to accept the
Final Conclusion of the Justices of the 14th Court of Appeals, those of
the Court of Criminal Appeals, those of the 3rd Court of Appeals that
reviewed this question of ownership, and recognized Heimlich as the
owner and, therefor, innocence of any crime.
Pemberton's disagreement with the other Justices does not give him
authority to violate the Law to which he is bound, if only bound by
honor, to comply with. But he did. He stands
in violation of the laws that govern his position of public trust.
Pemberton acknowledged the funds were seized (taken) from Heimlich's
bank account by order of a Judge, acting in the name of the State of
Texas, in a State District Court located in Harris County. The burden in
the Civil Case is on the Defendant, the State of Texas, to prove the
State returned the funds to Heimlich or to do so now. The State failed to present a
defense. Now Pemberton can clearly be seen stepping out of his role as
an objective Justice to become counsel for the Defendant raising a
defense even the Attorney General considered too absurd to raise in
their pleadings.
ADDITIONAL EXPOSURE OF JUDICIAL MISCONDUCT; FRAUD, DECEPTION, &
LIES
Let me begin with the Law governing
the conduct of attorneys. To be a Judge or Justice in Texas a person
must be licensed to practice law. They continue to be bound to the law
that governs attorneys when they accept the position of Judge, Justice,
Attorney General, or any other position of employment in our government.
If they should dispute or contradict anything written herein I request
you report it to me, ed@informed.org, and to the State Bar of Texas.
LAW GOVERNING ATTORNEYS
Texas Disciplinary Rules of Professional Conduct
Rule 3.03 Candor Toward the Tribunal
[The Legislature is a '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
Conclusion, or the Ruling, on the Appeal of 2008
Edmund Heimlich was awarded a Final
Judgment on finding of a District Court of Texas found the State of
Texas liable to him for unlawful taking of his property, in the sum of
$5,050 and for additional property loss caused by the wrongful
imprisonment he suffered at the hands of the State. The Texas Attorney
General appealed. This was the second appellate court review of this
civil
case by the Texas Third Court of Appeals. The matter had previously been
reviewed and settled in a criminal case.
The conclusion of the review by the appellate
court (Texas 3rd), according to a memorandum opinion authored by Justice Robert
Pemberton, was that the Texas Legislature had not given Heimlich, and
others who might be similarly situated,
permission to sue the State.
Pursuant to his tortured and labored perverse interpretation of the
Texas Legislature's act of 2001 permission was denied to those who
proved their actual innocence on direct appeal. Here are his exact
words:
we must conclude that the legislature intended to
provide a remedy solely to the wrongfully convicted who cannot
[sic, did not], for whatever
reason, obtain relief [from
a conviction for a criminal offense] through available
direct appeals.
Note that 'cannot' should be 'did not'. This error was either
intentional to imply to the reader that Heimlich's conviction had not
been reversed or it reveals the bias of Justice Pemberton. Some are too
biased to be reasonable or objective. To them, all who are or ever were
charged are guilty even if they prove their innocence!
The statute was established to provide
compensation to those who obtained relief from a conviction. In other
words; exonerated. A word that means officially found not guilty of
criminal charges. An order of acquittal. A official finding of
innocence. Any who read Chapter 103, codifying the
Act of 2001, will see that the statute makes no distinction on where
in our court system they succeed in proving their innocence and, in
doing so, obtain relief from their conviction. But few will. They will
assume that Justice Pemberton did and therefore accept his distinction.
Some may read the statute will not recognize this unlawful,
unconstitutional, legislating from be bench because they are ignorant of
the structure of our Courts and Legal Procedure.
A
brief review of the structure of our Courts and Legal Procedure
Difference between Criminal and Civil Matters
There are many,
including some who are
employed as staff for Texas Legislators, who are unfamiliar with the
Court system in Texas and how the system works. There are level that
begin with the Trial Court. Judgments in those courts can be appealed to
the intermediate Courts known as Appellate. Those rulings are subject to
additional review but those reviews are discretionary. That means the
petition for review can be simply ignored. By doing so the ruling is
said to have been affirmed by the denial. Equally important are the
venues. There is the criminal venue and there is the civil venue. The
law that governs the process in the criminal venue is very different
from the law that governs the process in the civil venue. The Law also
governs what may be determined in each and the implications of those
determination. In summary;
Criminal venue determines guilt or innocence
for the violation of a penal offense (a crime) that the government has
been given, by the Legislature, the power to act as plaintiff. Often
referred to as a prosecution. The prosecutor represents the government.
They are not
acting as an attorney for any private person or entity that might be
involved as a complainant or referred to as a victim.
Civil venue determines liability.
That is, civil venue exist to determine if one party is liable to
another party and, if so, the remedy that may be allowed by law. By
liable is meant has a Legal Obligation' to provide compensation or
restitution. Only in this venue can a private party (non-government)
enter as plaintiff by initiating a case against another party as
defendant.
Criminal Guilt not possible in Civil Case
Until recently a victim of a criminal
offense could not collect restitution from the perpetrator from a case
in the criminal venue. They had to bring a separate action in a civil
case. A person might be accused in a civil
case of doing something that is violation of a penal law. But the Court can only find that they
are liable to the plaintiff for restitution. Typically an award of money
to compensate for their damages, property loss, pain and suffering.
In a
civil case, guilt and innocence are
NOT the subject matter of this venue.
The Court, the Judge, and the Justices reviewing the case, do
not have
authority under the law to declare someone as guilty or innocent of a
criminal offense in a civil case. To do so would be to make the matter a
'criminal law' matter.
Texas Constitution
prohibits the Court from reversing an exoneration
in a criminal case in
response to the exonerated bringing a civil case
See Art. 5, Sec. 5, of our Texas
Constitution. JURISDICTION OF COURT OF CRIMINAL APPEALS.