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Convicted murderer Victor Salda�o should get a new sentencing hearing in which his race is not a factor in deciding his fate, says Texas Attorney General John Cornyn, who plans to continue fighting on Salda�o’s behalf if the Texas Court of Criminal Appeals again upholds the Argentinean’s death sentence. If the CCA sticks with its earlier decision that Salda�o should not have another trial, Cornyn says he will take the matter back to the U.S. Supreme Court. And if the criminal appeals court holds that he lacks authority to represent the state before the nation’s highest court, Cornyn says he will take the issue to the federal courts with a habeas writ, a process in which his authority cannot be questioned. “That kind of error, inviting the jury to consider a defendant’s race, rises to constitutional dimensions and simply is incompatible and repugnant to any fair system of justice,” Cornyn says. Cornyn, who says he supports the death penalty, made his comments shortly after the CCA heard arguments in Salda�o v. State of Texas on Feb. 28. Salda�o, 28, was convicted of capital murder in Collin County for killing 46-year-old Paul King after kidnapping him from a grocery store parking lot in 1995, the Office of the Attorney General said in its brief. King was shot five times, including once in the head at point-blank range, the brief said. At issue in the case is testimony presented during the punishment phase of Salda�o’s 1996 trial. According to the AG’s brief, Walter Quijano, a clinical psychologist, testified for the prosecution that Salda�o’s race is one of 24 factors that the jury should weigh in determining future dangerousness — one of two special issues that jurors consider before deciding whether a defendant in a capital case should be put to death. Quijano, who formerly worked for the Texas Department of Criminal Justice, testified that because Salda�o is from Argentina, he would be considered Hispanic and that this factor indicated future dangerousness, the AG’s brief said. According to the brief, Quijano said in his testimony that African-Americans and Hispanics are over-represented in prison. Cornyn confessed error in the case and asked the U.S. Supreme Court to vacate the judgment and remand the case for a new sentencing hearing in which Salda�o’s race would not be considered. But in June 2000, the Supreme Court sent the case back to the CCA, which had affirmed Salda�o’s conviction in September 1999. “The Texas Court of Criminal Appeals has an opportunity to tell the world that it will not tolerate racial prejudice in the courtroom,” Salda�o’s lawyer, Stanley Schneider, told the court. Schneider, a partner in Houston’s Schneider & McKinney, argued that Quijano’s testimony on the race issue amounted to a constitutional violation that was a fundamental trial error. “If race is allowed to permeate our justice system, no punishment will be fair,” he said. “That’s why the lady of justice is blindfolded,” said Judge Tom Price, who dissented when the criminal appeals court ruled against Salda�o in 1999. “In this case, you’re saying she peeked,” Price added. ERROR? Matthew Paul, the state prosecuting attorney, said race should not enter the picture during a trial but that Salda�o had not preserved the error for appeal. Salda�o’s lawyer did not object to Quijano’s testimony during the trial. “This court got it exactly right in its initial decision,” Paul said. “If a party wants to complain about the admission of evidence, the party has to complain at trial.” Scott Atlas, a partner in Houston’s Vinson & Elkins, argued that the question of whether Salda�o had waived his right to raise the issue on appeal is no longer before the criminal appeals court because the Supreme Court determined it had jurisdiction in the case. This court must reach the merits of the case, said Atlas, who filed an amicus brief on behalf of the League of Latin American Citizens, the Mexican American Legal Defense and Education Fund, Texas Catholic Conference, and other groups. Atlas, who is working on the case pro bono, said the government of Argentina also supported the amicus brief. Paul said that the Supreme Court’s decision to review the case is not binding on the criminal appeals court in any way. The Supreme Court indicated something new has developed in the case and that the criminal appeals court might want to look at it again, he said. John Stride, who represented the Collin County District Attorney’s Office, contended that Quijano’s testimony was harmless error because other factors — Salda�o’s boldness and his escalating crimes — had shown that he would be a future danger. The CCA had asked parties involved in the case to brief whether Cornyn had authority to confess error to the Supreme Court. Cornyn says his office has identified six other death penalty cases in which similar race-based testimony was presented. “Confessing error in the United States Supreme Court was both difficult and somewhat distasteful,” Greg Coleman, solicitor general in the OAG, said. “But we think it was the right thing to do.” Arguing that Cornyn had the authority to do what he did, Coleman said the OAG has 125 years of precedent as the state’s representative before the Supreme Court. “We believe the [Texas] Constitution makes the attorney general the appellate lawyer of the state,” he said. If the criminal appeals court rules the same way it did in 1999, Coleman said, the attorney general will confess error again. “Your calling something error doesn’t necessarily make it error,” Judge Mike Keasler said. Although he declines to speculate what the CCA might do, Cornyn says his sincere hope is that the court will do what the OAG believes is “the legally correct thing and the morally correct thing” and order a new sentencing hearing for Salda�o. Cornyn says he has no doubt about Salda�o’s guilt and that it’s likely he would be sentenced to death again. Salda�o has claimed he is innocent. His mother, Lidia Guerrero, and sister, Ada Salda�o, were in the packed courtroom for the arguments before the criminal appeals court. Horacio Wamba, Argentina’s general counsel in Houston, also attended the hearing.

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