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The Texas Court of Criminal Appeals has questioned Texas Attorney General John Cornyn’s authority to intervene in a case at the U.S. Supreme Court and confess that Texas erred because a prosecution witness cited race as a factor for determining the future dangerousness of an Argentine man. An order issued by the court on Nov. 8 directs the parties in Victor Hugo Saldano v. State to file briefs on the issue of the attorney general’s authority to represent the state in certiorari proceedings in criminal cases before the U.S. Supreme Court. The order also invites the attorney general to address the issue. The U.S. Supreme Court on June 5 vacated Saldano’s death sentence and remanded the case to the CCA, which had affirmed his conviction in September 1999. The high court took that action after Cornyn filed a brief that admitted error in Saldano’s case. “There is some question about what went on up there and whether he [Cornyn] had the juice to do it,” says Rick Wetzel, the CCA’s executive administrator. Cornyn argued in a brief that the prosecution’s introduction of race during the penalty phase of Saldano’s trial as a factor for determining future dangerousness was a violation of his right to equal protection and due process. Dr. Walter Quijano, a clinical psychologist testifying for Collin County prosecutors, said during the punishment phase of the trial that race was one of 24 factors that he looked at when determining future dangerousness. Saldano is Hispanic and a citizen of Argentina. He was convicted of capital murder for abducting Paul King from a grocery-store parking lot and shooting him to death. Stanley Schneider, the Houston criminal-defense lawyer representing Saldano, calls the court’s order “a whole lot to do about nothing.” Schneider, with Schneider & McKinney, says the issue of who has jurisdiction to represent the state before the Supreme Court is something that the Supreme Court — not the Court of Criminal Appeals — should decide. “The issue before the Court of Criminal Appeals is the order of the Supreme Court. That’s what they have to decide,” he says. But David Bradley, first assistant district attorney in Williamson County, says the court has raised a legitimate question. In general, the Office of the Attorney General does not get involved in cases until the direct appeals are completed and the federal writ process has begun, he says. “I always wondered how they got involved [in the Saldano case] in the first place,” says Bradley, one of several prosecutors who met privately with Cornyn and OAG staff last May to discuss what position the state should take in the case. Bradley says prosecutors have been concerned about Cornyn’s intervention in the case because it blocked the local district attorney from defending Saldano’s death sentence. Collin County District Attorney Tom O’Connell, whose office prosecuted the case, says the Supreme Court rejected his response to Saldano’s application for review because Cornyn had already filed a brief on the state’s behalf. O’Connell says he wasn’t told that Cornyn had decided to submit the brief until the day it was filed. When the issue first came up, O’Connell says his office began looking into the attorney general’s authority to represent the state at this juncture in a case. “We didn’t find any constitutional or statutory mandate that authorizes the attorney general to do this to the exclusion of the affected parties,” he says. O’Connell says he had asked Cornyn to defend the state’s position in the case. “There was a legally sound, legitimate basis for opposing the writ of certiorari application,” he says. A 5-2 VOTE In September 1999, the CCA overruled Saldano’s argument that the trial court erred by allowing the jury to consider Quijano’s statements on future dangerousness because the defense had failed to object to the testimony at trial. Because there was no objection, the error was not preserved, the court’s opinion noted. Some prosecutors are concerned about the impact that Saldano is having on other capital murder cases. On Sept. 28, U.S. District Judge Kenneth Hoyt of Houston ordered a new punishment trial for Carl Henry Blue, who was sent to death row for breaking into the College Station apartment of his ex-girlfriend, Carmen Richards, and setting her and a friend on fire. Richards died almost three weeks after the 1994 incident. Brazos County District Attorney Bill Turner says Quijano, the former chief psychologist for the Texas Department of Criminal Justice, testified for the defense at Blue’s trial and told jurors that he didn’t think Blue would be a danger to anyone behind bars if he was sentenced to life imprisonment. Under cross-examination, Quijano was asked how he reached his conclusion, and the psychologist cited race as one of the 24 factors he considers, Turner says. Blue is an African-American. Turner says Cornyn’s office notified him in June that it intended to seek resentencing for Blue. The district attorney says he asked Cornyn to reconsider his position in a July letter. In that letter, he wrote: “If it is error to test the basis for a defense expert’s opinion, the prosecution will face an impossible burden. The prosecutor will either be forced to accept the defendant’s expert without questioning or risk a reversal if the defense expert steps on sacred ground.” Although Hoyt issued his ruling before Cornyn filed documents in Carl Henry Blue v. State, Turner is frustrated by the attorney general’s decision to ignore the wishes of local prosecutors. “If I’m in the trenches working on these cases, it would be nice if the attorney general would represent our interests, especially when there was legal precedent that we felt would have sustained our conviction,” Turner says. As in the Saldano case, Blue’s lawyers did not object to Quijano’s testimony regarding the race issue, he says. Cornyn declines to be interviewed regarding the CCA’s order in Saldano. Heather Browne, a spokeswoman for the attorney general, read the following statement from Cornyn: “We accept the court’s invitation to provide a legal brief demonstrating the attorney general’s authority to represent the state of Texas before the United States Supreme Court in death penalty cases. While under Texas law I believe the attorney general’s authority is clear, we stand ready to assist the court in any way.” In an earlier interview with Texas Lawyer, Cornyn explained why he took a position in conflict with the Collin County district attorney and the CCA. “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 said at that time. “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 said. The CCA’s order was issued following a 5-2 vote by the court, with two abstentions. Judges Lawrence Meyers and Cheryl Johnson dissented. Presiding Judge Mike McCormick and Judge Sue Holland did not participate in the case. Wetzel says McCormick had a death in his family and did not attend the conference at which the order was approved and that Holland is from Collin County and habitually does not take part in cases from there.

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