Dallas Morning News

TEXAS: AG, court dispute still simmering 

 Capital murder case in limbo; federal showdown is likely

A rare public clash between the state's top lawyer and the state's highest criminal court escalated recently after a decision that left Attorney General John Cornyn fuming and a Collin County capital case in legal limbo.

Experts expect the spat to carry over into federal court, drawing out the unusual spectacle of the attorney general lining up with defense attorneys against prosecutors to get a new sentencing trial.

The case involves death row inmate Victor Saldano, convicted in the 1995 abduction and murder of Paul King of Plano. Mr. Saldano's appellate lawyers had argued � and Mr. Cornyn agreed before the U.S. Supreme Court - that the death sentence came after improper, race-based testimony.

Ordered to review the case, the Texas Court of Criminal Appeals handed down a 7-2 decision denying a new sentencing trial for Mr. Saldano on procedural grounds. The ruling came after the court questioned Mr. Cornyn's standing in the matter.

"They're wrong," Mr. Cornyn said.

"A court is more than just a processor of cases on a conveyor belt," Mr. Cornyn said. "It appears that they seem more concerned about process than they do about justice."

Lawyers say they've never seen such a public quarrel involving the attorney general, prosecutors and the Court of Criminal Appeals.

"It's off-the-scale unusual when you ... have the attorney general saying the defense is right," said David Dow, law professor at the University of Houston.

The spat is even more unusual because Mr. Cornyn is a Republican running for the U.S. Senate, and all judges on the Court of Criminal Appeals are Republicans. 3 of the 9 are seeking to stay on the court in the upcoming election.

The legal wrangling began during the case's direct appeal to the U.S. Supreme Court over the testimony of psychologist Walter Quijano.

Dr. Quijano testified that the Hispanic background of Mr. Saldano, an Argentine laborer, was 1 of 24 reasons he could be considered a danger to society. To assess the death penalty in Texas, a jury must find a defendant poses a future danger.

Role of politics

Some observers, while applauding Mr. Cornyn's actions, suspect he staked his position for political reasons. The case has been closely followed in Latin America, and Mr. Cornyn's position could resonate with Hispanic voters.

"I don't think there's any reason to believe the attorney general's office has had some conversion and is suddenly concerned about fairness," Mr. Dow said. Mr. Cornyn's office, for instance, argued in federal court that a death-row inmate did not deserve a new trial even though his attorney dozed in court.

"The only reasonable conclusion," Mr. Dow said, "is that its position in this case is driven by politics. The politics are that it is never politically dangerous to oppose even the appearance of racism."

Mr. Cornyn said, "This is not a political issue; it's not a partisan issue. It's one I would hope all fair-minded individuals would agree with � that it's just impermissible to inject the issue of race into a criminal case or any case for that matter."

After reviewing the case, Mr. Cornyn's office notified Collin County District Attorney Tom O'Connell that the attorney general would acknowledge to the Supreme Court that a mistake had been made.

Mr. O'Connell protested and sought to handle the case himself, but the attorney general proceeded to "confess error" in the case.

On the basis of that statement, the Supreme Court overturned the sentence and sent the case back to the Court of Criminal Appeals for "further consideration."

Mr. Cornyn said he believes Mr. Saldano is guilty and would receive the death penalty without the testimony, but was sentenced unfairly. "I was shocked that in the year 2000 that prosecutors were still using this kind of testimony," he said.

Mr. O'Connell said he was just as shocked by the attorney general's decision to confess error. He "resented the implication" that his office condoned racist practices, he said, adding that race was no more an issue than gender or age.

No trial objection

The district attorney's legal position is that state law requires that an objection to testimony be made at trial if attorneys want to bring up the issue on appeal.

Since Mr. Saldano's trial lawyers didn't object to the Quijano testimony, there was no ruling by the trial judge. Therefore, no error could be claimed, Mr. O'Connell said.

Prosecutors were angered that Mr. Cornyn acknowledged error rather than allow the Supreme Court to decide the merits of the case, said Rob Kepple, general counsel for the Texas District and County Attorneys Association.

The attorney general should play "a supporting role to prosecutors," Mr. Kepple said.

Mr. Cornyn said while it is the role of the attorney general to defend cases, "I took an oath to defend and uphold the constitution and laws of Texas and the U.S., and in my view this is an unconstitutional use of race."

Narrow focus

The Court of Criminal Appeals sided with the district attorney's office and ruled on the procedural question.

Stanley Schneider, Mr. Saldano's appellate attorney, criticized the court's narrow focus on procedure.

"This is a fundamental rights issue," Mr. Schneider said. "The people of this state should be free from being punished because of the color of their skin.

Professor Dow, who represents capital defendants on appeal, said he expects the decision to be overturned in federal court. Mr. Cornyn said his office would "confess error" again in federal court.

The Supreme Court ruling in the Saldano case affected 6 other death-row cases in which Dr. Quijano testified. Three of those inmates won federal orders for new sentencing hearings; each received the death penalty again. 2 more are still pending in federal court, and a 3rd is pending in state court, according to the attorney general's office.

The impact of the Saldano case has been felt beyond death row. After the Supreme Court decision, the legislature passed a statute outlawing the use of race-based testimony.

The Saldano case also helped clarify the role of the attorney general in death-penalty appeals. During its review of the Saldano case, the Court of Criminal Appeals "invited" arguments on who represents the state at the 1st appeal before the Supreme Court.

Judges decided that Mr. Cornyn had the right to handle the Saldano case, as he had followed tradition. But, the court said, the determination of who represents the state on direct appeal to the Supreme Court belongs to district attorneys.

The court's invitation to address the issue surprised legal experts.

"Nobody had ever raised the issue of our authority," said Gregory S. Coleman, former assistant attorney general who first called the Saldano case to Mr. Cornyn's attention. "There was no reason for the court to raise this issue."

But Matthew Paul, state prosecuting attorney who sided with the Collin County district attorney, said the court apparently was "concerned about who's going to be representing the state of Texas in criminal cases in the U.S. Supreme Court. I guess that makes sense - it's their judgment that's getting reviewed, and it's their judgment that the attorney general was saying was indefensible."

(source: Dallas Morning News)