Lawyer and client chose to ‘lie to the Court…’

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“S.G.W. and A.F.W.” are children whose anonymity is assured by law

LES BICYCLETTES DE BELSIZE

“No man’s life, liberty, or property are safe while the legislature is in session. ” – Mark Twain (1866)

Rockwall, TX – They are referred to only by their initials, two little girls whose estranged father has been prevented from visiting for nearly a decade – as a requirement of a recent Act of the Legislature, in order to guarantee their privacy.

According to a well-experienced investigator, a man who has dealt in legal facts and the ever-unfolding narrative of family matters examined by Texas Courts, it merely serves as an assurance that future inquiries will likely be rendered impossible – by design.

“They are usually mentioned in separate pleadings – ‘in the interest of’. How can you determine which person you are seeking, if, when you get to another jurisdiction in another courthouse, all you have are initials? You can’t, that’s how,” he says in exasperation, gesturing, palms up, a frustrated hound purposely thrown off the scent through yet another trick of the law, this new and improved deus ex machina created by lawyers for lawyers whose clients have painted themselves into corners.

An equally experienced counselor and child play therapist with extensive service to the Courts put it this way. “It robs the children of their humanity. They no longer even have a name, only initials, once the system begins to deal with them in these terms.”

And why? Here’s a clue.

At law, there is an ancient remedy available to those condemned by the faulty judgment of an erroneous Court action – the collateral attack.

In the criminal law, it’s called a Writ of Habeas Corpus, an ancient Latin term meaning, literally, to “produce the body” of the person so condemned – for it is to be noted that in the dark ages, a prison sentence was in truth a death sentence effected by exposure or disease, or both – and now to be afforded a new hearing by virtue of new and exculpatory evidence. Courts are obliged to cease all other activity and clear the docket to hear the pleadings on the application, to consider setting bail for the release of the individual so convicted while the case is pending. Naturally, it is a case for which the effective time limits for appeal have expired, in which circumstance there is no other available venue for a remedy. 

Civil law sometimes has even more far-reaching and disastrous consequences for members of the families of hapless litigants involved in the arcana of protracted, overly complicated and obscure processes, proceedings they may hardly be expected to understand for the reason that, for starters, they had no knowledge of their existence.

…Petitioner did not learn, and could not have learned through the exercise of reasonable diligence, of the nature of Respondent’s fraud…

There was an ancient practice of criminal law in which a person could be found “outlaw” in a hearing conducted in absentia, a proceeding in which legal authorities declared the accused a non-person, someone with no rights at law, who could be killed or otherwise dealt with through extreme and violent means, transported to another state, banished or driven from their homes, their property and possessions forfeited.

Fortunately, Section 20 of Article 1 of the Texas Constitution prohibits “Outlawry or Transportation for Offense,” whereby a citizen “shall be outlawed;” by the same turn, “No person shall be transported out of the State for any offense committed within the same.” An Act of the Legislature in 1985 amended this key element of the Bill of Rights – a little something that keeps the authorities from turning the entire Lone Star State into an outright Penal Colony by adding the chilling provision that, “This section does not prohibit an agreement with another state providing for the confinement of inmates of this State in the penal or correctional facilities of that state.”

Such a deal; these boys are all heart. In between expense account lunches and tee times, it seems the corporate world is always with us, even in matters of ministerial duty assigned to the State by both Constitution and statutes.

There are certain practices at civil law that are not so even handed, as it were. In those cases, once the time limit of 30 days has expired for plenary review of a judgment or to take an appeal, the law allows a four-year period in which a petitioner may carry out a collateral attack on a judgment by proving three elements to the Court of original jurisdiction in order to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal.

Attorneys often use the petition for a bill of review as a collateral attack on judgments obtained by credit card companies and banks to collect unsecured debt in proceedings their clients did not know of because the banks sought to serve them by publication after process servers failed to find them at their recorded locations of employment or residence.

This is the civil version of the Application for a Writ of Habeas Corpus,” according to Lane Haygood, an attorney for Stephen Warren, who has been prevented from seeing his children for the past seven and one-half years in spite of orders of the Court and the arrangement of supervised visits at a certified visitation center in Dallas, FLP, located in the 8900 block of Harry Hines Blvd.

Twice in the previous month following a contempt hearing before visiting Judge Joe Leonard, once on Sunday, the 13th, and on Sunday, the 27th, he was prevented by a staff member named Christina Coultas from seeing his children after cursory sessions of four minutes and two minutes during sessions scheduled to take place over a period of two hours each.

According to a member of the legal staff, “After what happened this weekend…we can’t expect justice – not from them.”

According to a holding in a previous case, (Transworld, 722 S.W.2d at 408) “petitioner must prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that he was prevented from making by the fraud, accident or wrongful act of his opponent, (3) unmixed with any fault or negligence of his own.”

If a judge finds in a hearing on the first proposition, that the petitioner is offering a meritorious defense to the cause of action that was alleged to support the judgment, he will set a trial on the second two for its reversal. Depositions are in progress at this time, as ordered by Judge Leonard on September 11 in the contempt hearing. The Court will then proceed in a new case under a new Cause Number.

…Petitioner became aware of the nature and extent of Respondent’s fraudulent actions through discovery in this case…

When a Rockwall County Family Court placed Stephen Warren of Odessa under supervised visitation with his two daughters on March 1, 2011, the visiting Judge believed his ex-wife when she and her attorney, his attorney ad litem, and a district clerk swore they could not find him to respond to the suit.

He also believed Leslie Canvanaugh Bird’s attorney David Rohlf when he entered into evidence an indictment for his alleged aggravated sexual assault of his eldest child, S.G.W.

It was not until September 11, 2015, that his attorneys Cynthia Clack and Lane Haygood were able to discover evidence that those claims were fraudulent.

School records turned over by Rockwall Independent School District revealed that in fact Warren had given notice of his whereabouts, and the truth was that he was laid up in a hospital with a spinal injury he sustained in a plane crash at the time of the hearing. The records show that Mrs. Bird had instructed the school district employees to notify her immediately if he contacted them. She failed to so inform the Court.

In a Petition for Bill of Review filed on September 25, 2015, Warren’s lawyers have alleged that Leslie Bird misrepresented material to the Court, and that she and her attorney, David Rohlf “committed fraud and perjury by informing the Court that they could not locate” him.

The petition further states that both she and her counsel “committed further fraud by failing to inform the Court that criminal proceedings against Petitioner had been dismissed.”

Though his ex-wife informed the Court of “the outcry that lead to Petitioner’s criminal prosecution,” she and Rohlf “failed to inform the Court that the matter had been dismissed in December of 2010, a fact of which Respondent was aware according to her own admission” in an attached exhibit.

Rohlf “offered and admitted a copy of the indictment and conditions of bond against Petitioner but wholly failed to offer a copy of the order of dismissal or motion to dismiss.”

That’s a violation of Rule 3.03(a)(2) of the Texas Disciplinary Rules of Professional conduct.

The petition is way past the fouryear period allowed for a bill of review, but the attorneys are pleading the Court toll the statute because their client had no way of discovering the truth in the face of the lies of his ex-wife and her attorney.

They are asking that the Court set aside and cancel the order of March 1, 2011 and give Warren standard possession as stated in the Final Decree of Divorce.

He is asking for a new trial and that the Court order:

a. Costs of suit and reasonable attorney’s fees;

b. Requested modifications to his possessory status and visitation;

c. That his ex-wife be held in contempt and jailed for up to 180 days and assessed a fine of $10,000 or placed on community supervision for 10 years for her fraudulent representations to the Court on March 1, 2011;

d. That David Rohlf be held in violation of Rule 3.03 of the Texas Rules of Disciplinary Procedure due to his failure to provide the Court accurate information on March 1, 2011.

e. That David Rohlf, her attorney be removed as counsel of record and be named as an interested and material fact witness in the case;

f. That David Rohlf be sanctioned in the amount of $40,000 for his violation of Rule 3.03 as alleged;

g. That the March 1, 2011, order be declared void and that visitation under the Final Decree of Divorce entered on or about April 25, 2005, be reinstated immediately.

 

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