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In an unusual move, the Collin County, Texas, district attorney’s office made an attempt to intervene in Victor Hugo Saldano’s federal habeas corpus case, arguing that the Texas office of the attorney general wrongly confessed error in the death row defendant’s trial. On June 4, the district attorney’s office filed a motion to intervene in the high-profile petition pending before U.S. District Judge Richard Schell of Beaumont. Defending federal habeas petitions filed by Texas death row inmates is normally the responsibility of the state attorney general — a civil duty that district attorneys rarely object to. But the district attorney’s office complains in its motion that the attorney general is not representing the best interests of the state in the case. Saldano — who seeks a new punishment hearing — sits on death row for the 1995 abduction, robbery and shooting death of Paul King. In 2000, Texas Attorney General John Cornyn confessed error in Saldano v. Texas because Dr. Walter Quijano, former chief psychologist for the state prison system, testified in Saldano’s 1996 trial that a defendant’s race or ethnicity should be considered by a jury in deciding whether to assess the death penalty. According to appellate rulings, Quijano testified that, in his opinion, one of the factors associated with a defendant’s future dangerousness is his race or ethnicity. Cornyn, a Republican candidate for U.S. Senate, has said that “inviting” a jury to consider a defendant’s race should play no part in a fair system of criminal justice. Saldano is a native of Argentina. Cornyn’s position in Saldano has fueled at least five other death row defendants seeking federal habeas relief for cases in which Quijano testified, says John A. Stride, an assistant district attorney in Collin County, Texas. The U.S. Supreme Court remanded Saldano’s case to the Court of Criminal Appeals in 2000 in light of Cornyn’s confession of error. Yet on remand, the Court of Criminal Appeals ruled earlier this year that it could not consider the confession of error because it was contrary to Texas’ procedural law for making a claim on appeal. Because Saldano’s attorneys did not object to Quijano’s testimony at trial, the issue was not preserved on appeal, according to the court’s opinion. POLICY OR LAW? In their motion to intervene in the federal case, Collin County District Attorney Tom O’Connell and Stride, the office’s appellate chief, accuse the attorney general of following political will instead of the law in Saldano. “[Cornyn] has for reasons grounded in his perception of advantageous policy, refused to defend the Court of Criminal Appeals’ considered and consistent application of the law,” the motion alleges. The district attorneys argue that Cornyn cannot take a position contrary to state prosecutors in a federal habeas case. “If [Cornyn] does not have the statutory authority to make a waiver that prejudices the rights of the state and cannot bind state officials against their wishes, he does not have the authority in the instant case to waive the procedural bar and confess error against [the district attorney's office's] wishes,” the motion states. To shore up their opposition to the attorney general’s stance, O’Connell and Stride also submitted an amicus brief with state prosecuting attorney Matthew Paul. “Simply put, the [attorney general's] representation of the State of Texas in this particular case is no representation at all,” the amicus brief states. But Jane Shepperd, a spokeswoman for the attorney general, says, “Making sure that race isn’t a factor in life and death decisions isn’t a matter of policy preferences, it’s the law.” Shepperd says the office declines further comment on the motion to intervene. Cornyn was expected to file a formal response this week. In a March 13 press conference, Cornyn said the Court of Criminal Appeals opinion rejecting Saldano’s appeal “reeks with injustice.” He said Saldano may deserve the death penalty, but not because of his heritage or ethnicity. PROTECTING THE CASE Stanley Schneider, who represents Saldano, says in federal court Cornyn represents the best interests of the people of Texas, not prosecutors. “The attorney general has taken a very courageous position. He’s saying, ‘We cannot execute someone if it’s possible that race was a factor,’ ” says Schneider, of Houston’s Schneider & McKinney, who filed a response last week opposing the district attorneys’ attempt to intervene in the case. “ He represents all of Texas regardless of race. “It’s only the prosecutors that are upset about what the attorney general is doing,” Schneider says. “It’s not the people of Texas.” Stride says his office intervened because it felt it had to protect its case. “When it comes back from the federal court, the federal attorneys are off the case, and we’re back on it,” Stride says. “And we have to deal with what’s left.” Harris County prosecutors attempted to intervene in a similar federal habeas case in which Cornyn confessed error because of Quijano’s testimony. However, without comment on March 28, 2001, U.S. District Judge Vanessa Gilmore of Houston rejected the Harris County district attorney’s office’s attempts to intervene in the habeas corpus case of Eugene Broxton, another Texas death row inmate. Broxton’s case is pending in the federal system, says Roe Wilson, chief of the post-conviction writs division for the Harris County district attorney’s office. Quijano’s testimony was brought to light in Saldano and spurred similar habeas litigation in numerous other cases in which he testified. Two other death row defendants from Collin County also filed federal writs and won new sentencing hearings, Stride says. Both of those defendants were resentenced to death, Stride says.

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