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When the consul general for Argentina asked Houston criminal-defense attorney Stanley Schneider in January to handle habeas corpus appeals for a death-row inmate, Schneider’s first inclination was to turn him down. He says he’s done enough death-penalty appeals. But Schneider reconsidered after he heard more about Victor Hugo Salda�o’s situation — jurors deciding whether to sentence Salda�o to death were asked to consider his race as a factor in future dangerousness. “I was shocked … that race could be considered an issue. I thought we had gone farther than that,” Schneider says. “This is junk science.” But Schneider’s efforts on Salda�o’s behalf — with highly unusual support from Texas Attorney General John Cornyn and support from other Texas lawyers who filed amicus briefs — got Salda�o a reprieve from his death sentence. The U.S. Supreme Court on June 5 vacated the sentence against Salda�o and remanded it to the Texas Court of Criminal Appeals, which had affirmed Salda�o’s conviction in September 1999. Schneider says the Supreme Court acted quickly because of Cornyn’s brief that admits error in Salda�o’s case. “That is what is so unprecedented. What they are saying is any evidence about race, an injection of color, is wrong,” says Schneider, a partner in Schneider & McKinney. Cornyn argued in the brief that the prosecution’s introduction of race during the penalty phase of Salda�o’s trial as a factor for determining future dangerousness constituted a violation of his right to equal protection and due process. “Because the use of race in Salda�o’s sentencing seriously undermined the fairness, integrity, or public reputation of the judicial process, Texas confesses error and agrees that Salda�o is entitled to a new sentencing hearing,” Cornyn wrote in the brief. The Supreme Court vacated the sentence against Salda�o and ordered it back to the Court of Criminal Appeals “in light of the confession of error.” The Supreme Court’s action is important not only to Salda�o, but to others on death row in Texas. Cornyn’s office has identified at least eight other cases in which a death sentence could be partly based on similar testimony. “Once we determine what the cases are [in which] that has happened, then I anticipate we will treat those cases the same way,” Cornyn says. The AG’s action is in itself important. The AG’s brief takes a position not only in conflict with the Collin County District Attorney’s Office, but with the decision of the Court of Criminal Appeals. “I was and am so troubled by the notion that a jury was being asked whether the death penalty should be assessed, based at least in part on the color of someone’s skin, I decided to take this extraordinary step,” Cornyn says in an interview. It’s evidence of the checks and balances in the judicial system, he says. “My role primarily, as a lawyer for the state, is to defend the state, defend the judgment. But we are also talking about public confidence in the death penalty and the justice system,” he says. UNPRESERVED ERROR Salda�o, a citizen of Argentina, was convicted in Collin County in 1996 of the 1995 capital murder of Paul King. According to the AG’s brief, Salda�o and an accomplice used a handgun to kidnap Green from a grocery-store parking lot, and Salda�o later fatally shot King five times, including once in the head at point-blank range. During the punishment phase of the trial, prosecutors put clinical psychologist Dr. Walter Quijano on the stand. Part of his testimony was on the 24 factors, including race, that jurors could weigh when determining future dangerousness. According to the brief from the AG’s office, Quijano testified that African-Americans and Hispanics are over-represented in prison, and that while race itself may not explain the over-representation, Salda�o is Hispanic because he is from Argentina. Salda�o’s court-appointed defense attorney, David Haynes, says he did not object during the trial when Quijano testified about race. “To the extent that I thought about that, I felt that Judge [John] Roach was likely to overrule any objection that was made. Furthermore, his testimony went by pretty quickly,” says Haynes, a solo practitioner in McKinney, Texas. “At the time it didn’t occur to me to object to that for those reasons. It went by fast. I wanted to object to other stuff. … I didn’t want to bring the jury’s attention to something that would hurt us,” he says. But Haynes says the testimony about race jumped out at him when he reviewed the transcript of the hearing when preparing Salda�o’s appeal. He says he made the race issue a main point in his appeal and that’s all the Court of Criminal Appeals was interested in during oral arguments. Does he regret not objecting to Quijano’s testimony? “You bet,” Haynes says. “I’m glad that he’s not going to be put to death immediately,” he notes. In an unpublished opinion issued Sept. 15, 1999, the Court of Criminal Appeals overruled Salda�o’s argument that the trial court erred by allowing the jury to consider Quijano’s testimony on the future-dangerousness special issue. The court’s opinion says Salda�o did not preserve the error. “The appellant did not object to Dr. Quijano’s testimony at all during trial, and does not argue that admission of the testimony was fundamental error,” Judge Paul Womack wrote in the opinion. He was joined in the decision by presiding Judge Michael McCormick and judges Lawrence Meyers, Sharon Keller, Mike Keasler and Stephen Mansfield. Judge Tom Price dissented and Judge Cheryl Johnson concurred in the affirmance of the judgment of guilt but dissented with the affirmance of the sentence. Mansfield concurred with a note: “I am convinced that, in this case, the reference by Walter Quijano to the fact that Hispanics and African-Americans are incarcerated at a rate greater than their percentages of the general population of this country did not harm appellant. The danger that such testimony could be interpreted by a jury in a particular case as evidence that minorities are more violent than non-minorities is real, however, and this Court should not sanction the use of such testimony.” TROUBLING ISSUES Haynes says his representation of Salda�o ended with appeals to the Court of Criminal Appeals. Schneider says he was appointed by a federal magistrate in January to handle Salda�o’s habeas appeals. In February, he filed a petition for a writ of certiorari with the U.S. Supreme Court. And he got Justice Antonin Scalia to stay Salda�o’s execution, which had been set for April. By late March, Scott Atlas, a partner in Vinson & Elkins of Houston who has worked on death-penalty cases before on a pro bono basis, agreed to file an amici curiae brief for the Republic of Argentina. Argentina was joined by the Republics of Chili, Ecuador, Uruguay and Venezuela, and the United Mexican States. Atlas and other lawyers also filed another amici brief on behalf of a several public interest groups ranging from the League of United Latin American Citizens to the National Association of Criminal Defense Lawyers. Atlas says he filed his two amici briefs on May 10, a few days after Cornyn filed his brief. The Supreme Court did not accept a brief filed later by the Collin County DA’s office. John Schomburger, an assistant district attorney in Collin County, Texas, says the Supreme Court’s clerk’s office rejected the brief because the AG had already filed one. “We filed a brief that basically put forth the position that the Supreme Court did not have jurisdiction to review the case and even if they did, this was harmless error,” says Schomburger. “Basically the response was, ‘There is already a brief filed.’” Schomburger says the DA’s office is disappointed with the Supreme Court’s decision. The Court of Criminal Appeals could order another sentencing hearing for Salda�o, he says. He says the testimony of Quijano that has come into question was insignificant. “The testimony covered about 22 lines of one witness’s 96 pages of testimony. It was insignificant. That was reflected by the fact that the defense attorney at the trial did not object to it,” Schomburger says. But Atlas and Jim E. Lavine, a board member of the National Association of Criminal Defense Attorneys, say prosecutors should not have allowed race to become a factor at Salda�o’s sentencing hearing. “It appeals to the prejudice of the local populace,” says Lavine, a partner in Houston’s Zimmerman & Lavine. Salda�o’s fate is now back in the hands of the Court of Criminal Appeals. While Cornyn asked the Supreme Court to remand Salda�o’s case to the trial court with instructions to hold a new sentencing hearing in which race is not considered, the Supreme Court sent it back to the Court of Criminal Appeals. Lavine says the broad impact of the Supreme Court’s order may be how the Court of Criminal Appeals deals with the case after affirming the sentence in 1999 on procedural grounds. “Those are troubling issues,” he says. Notes Lavine: “It’s a matter of not being able to see the forest through the trees, that the Court of Criminal Appeals is so concerned with procedural nitpicking that they have failed to understand … due process rights.”

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