Admitting
there was a "skunk in the jury box" after race became
part of a death penalty case, the Texas Court of Criminal Appeals
on Wednesday still questioned Texas Attorney General John Cornyn's
attempts to get new sentencing hearings for seven Death Row
inmates. Judges repeatedly condemned the decision by the Collin
County district attorney's office to allow an expert witness to
discuss Victor Saldano's race and ethnicity when sentencing him to
death in 1996.
By
allowing a clinical psychologist to testify that race can help
predict whether a defendant is a danger to society, Collin County
prosecutors released a "skunk in the jury box" that can't
be removed, Judge Charles Holcomb said.
In
1999, the appeals court upheld Saldano's conviction and death
sentence, saying the testimony did not make the trial unfair. When
Saldano appealed to the U.S. Supreme Court, Cornyn refused to
defend the state.
But
on Wednesday, the state's highest criminal court was still
questioning Cornyn's authority to confess error to the Supreme
Court and seek a new sentencing trial.
"My
sincere hope is that they will do what we believe is the legally
correct thing and the morally correct thing" and give Saldano
a new sentencing trial, Cornyn said at a news conference Wednesday.
Cornyn
and the court's historic showdown comes as the Texas legislature
considers a plethora of criminal justice changes including post-
conviction DNA testing and higher standards for court- appointed
attorneys.
Presiding
Judge Sharon Keller has come under fire for not taking a more
active role in trying to change the system and for a series of
decisions in which critics say the court ignored miscarriages of
justice.
Representatives
from Mexico and several South American countries were in court
Wednesday, along with Saldano's mother, Lidia Guerrero de Saldano.
"It
demeans our system of justice," when race becomes a part of
the equation, Stan Schneider, Saldano's attorney, told the court.
"We can't punish someone for the color of their skin or where
they come from."
Saldano,
an Argentine, and a co-defendant were accused of kidnapping Paul
Ray King, 46, from a Plano grocery store parking lot in November
1995. The victim was driven to a wooded area and shot five times,
once in the head.
During
Saldano's trial, Walter Quijano, a clinical psychologist,
testified about 24 factors he said could help predict whether
Saldano would be a future danger and should be executed. Among the
factors was race or ethnicity.
Cornyn
conceded to the U.S. Supreme Court that references to Saldano's
ethnicity violated his constitutional rights. The justices set
aside the death sentence and returned the case to the Texas
appeals court.
Similar
testimony tainted six other death sentences and Cornyn's office
announced that it would seek to have those penalties set aside,
too.
The
appeals court asked Cornyn to explain why he had the authority to
confess error and seek new sentences for Saldano. Eventually,
their ruling could decide the 6 other inmates' fate. If the
appeals court denies Saldano a new sentencing hearing, Cornyn said
he will probably return to the federal courts.
John
Stride, a Collin County assistant district attorney, and state
prosecuting attorney Matthew Paul said Quijano's testimony created
a "harmless error" during the trial. Other evidence may
have convinced the jurors to give Saldano a death sentence, they
said.
Saldano's
defense attorney should have attacked the testimony during the
trial, Paul said. This may have been part of the attorney's
strategy, albeit a bad one, he said.
"If
it were up to me, I would not have put on the testimony at all,"
Paul said. "Race should not enter into the picture at trial
in any way. I also assert, you have to object" during trial,
he said.
Paul
questioned the attorney general's "exclusive right" to
represent Texas before the Supreme Court or to "silence the
voice of the district attorney" by taking a different legal
position.
But
Texas Solicitor General Greg Coleman said the attorney general has
represented the state before the Supreme Court for 125 years. He
said the decision to confess error was not reached lightly.
"We
did what we had to do to get justice done," Coleman said.
At
the news conference, Cornyn said Collin County District Attorney
Tom O'Connell's ]use of the testimony was ill-advised since he
could have achieved the same results without it.
"Why
the district attorney chose to inject race is beyond me,"
Cornyn said. "I think it is repugnant to the fair system of
criminal justice but it was unnecessary. ... I think that he needs
to examine his own practices."
O'Connell,
who did not appear in court, did not return telephone calls.
While
the court took the case under advisement Wednesday, its 1999
decision was not unanimous. 6 of the judges upheld the verdict and
sentence, while Judge Cheryl Johnson objected to the sentence.
Judge
Sue Holland, who is from Plano, abstained.
Holcomb
was not on the court at the time. But Judge Tom Price dissented to
both the verdict and sentence for the same reason Cornyn confessed
error.
While
Lady Justice is supposed to be blind, Price said, "In this
case, you're saying she peeked." Judge Mike Keasler said that
"no one condones" what the prosecution did, calling it
"absolutely indefensible" and "outrageous."
This
court does not "punish people for what they are, but for what
they do," Keasler said. But the judge added that just because
Cornyn calls something an error doesn't mean that it is an error.
Scott
Atlas, who represented the League of United Latin American
Citizens and other groups, said it was "clear at different
times that different judges seem troubled about the race issue."
"But it is impossible to prejudge how this court will rule,"
he said.
