Saturday, March 24, 2018

Death Penalty

Why the Injection of Race in Saldano v. State Constitutes Fundamental Error



excerpted from: Diana L. Hoermann, Why the Injection of Race in Saldano V. State Constitutes Fundamental Error, 4 Scholar: St. Mary's Law Review on Minority Issues 261-305, 261-272 (Spring 2002)(295 Footnotes)

Now, of course, all of these reasons that they give are excuses, pure and simple; they are not truthful statements; at the root it is simply race prejudice, and the prejudices of superiority which we find everywherein the world . . . . There is no excuse for this. No person can place it upon a scientific basis; it is a question of feeling. Clarence Darrow

An enlightened society knows that race should not determine the quality of justice a person receives. Certainly, an enlightened criminal justice system would not allow race to determine a person's fate. However, the Texas criminal justice system, sanctioned by its highest appellate court for criminal matters, allows a person's race to be considered as a factor in determining whether that person should receive the death penalty.

On September 15, 1999, the Texas Court of Criminal Appeals issued an unpublished opinion in the case of Victor Hugo Saldano v. The State of Texas. In Saldano, the court upheld the imposition of the death penalty where the jury heard testimony from an expert witness who stated that a person's race is a factor that should be considered by a jury in deciding whether a person will be sentenced to death. To some people, the Saldano case represents just another death penalty sentence affirmed by Texas' highest criminal appellate court. To others, it represents a disturbing step backward to a time when the color of a person's skin could determine his or her fate.

Saldano exemplifies a disturbing trend in Texas jurisprudence. The case, which the Court of Criminal Appeals chose not to publish, did not generate any media attention and managed to fly under the radar until June 2000. It was then that the United States Supreme Court reversed the case after Texas Attorney General John Cornyn took the extraordinary step of confessing error as the State's legalrepresentative. However, on remand from the Supreme Court, the Texas Court of Criminal Appeals again affirmed Mr. Saldano's death sentence. Most perplexing is how, in today's society, the case managed to go unnoticed for as long as it did and, moreover, that a case of this nature would even be upheld by the State's highest criminal appeals court in light of the issues and historical precedent involved.

This article will examine the history of the use of a person's race in the legal system, particularly in criminal cases, and detail how the Texas Court of Criminal Appeals' decision in Saldano I and II represents a radical departure from historical precedent concerning the prohibition the use of race in determining a person's fate.

II. Saldano v. State

Victor Hugo Saldano, a citizen of Argentina, was charged with capital murder in Texas and the State sought the death penalty. Mr. Saldano was accused of kidnapping Paul King from a grocery store parking lot. The evidence showed that Mr. Saldano and an accomplice took Mr. King to a secluded country road where Mr. Saldano forced Mr. King into the woods and shot him five times. The evidence also showed that Mr. Saldano stole Mr. King's watch and wallet. After hearing the evidence, a jury in Collin County, Texas convicted Mr. Saldano of capital murder in July 1996.

A punishment hearing was held to determine if Mr. Saldano should receive the death penalty. At this hearing, the jury was asked to decide, beyond a reasonable doubt, "whether there is a probability that [Mr. Saldano] would commit criminal acts of violence that would constitute a continuing threat to society." The State's evidence, admitted at the hearing to support the issue of future dangerousness, elevated matters to a new level in Texas. The State called Dr. Walter Quijano, a licensed clinical psychologist, to testify as to Mr. Saldano's "future dangerousness." Dr. Quijano testified to twenty-four factors that he felt would merit a death sentence. Inappropriately, one of the twenty-four factors Dr. Quijano referred to was Mr. Saldano's race. Specifically, Dr. Quijano testified that various studies indicate that the number of African Americans and Hispanics in Texas prisons is disproportionate to their percentage in the general population. He further testified that because Mr. Saldano is a Spanish speaker, he is classified as "Hispanic" for the purposes of these studies. A fortiori, Mr. Saldano's race could be considered a factor weighing in favor of a finding of future dangerousness since there are a disproportionate percentage of Hispanics in prison compared to the general population. Mr. Saldano's defense attorney failed to object to the admission of Dr. Quijano's testimony. The jury found that Mr. Saldano would be a future danger to society, and he was sentenced to death.

Mr. Saldano appealed his conviction and death sentence, arguing, inter alia, that it was impermissible for the State to allow the jury to consider race in determining whether the death penalty should be imposed. On September 15, 1999, the Court of Criminal Appeals issued an unpublished opinion on the case. The majority opinion devoted a mere three paragraphs to the use of race in determining future dangerousness and held that the failure of Mr. Saldano's defense attorney to object to the testimony of Dr. Quijano failed to preserve the error for review. The majority rejected Mr. Saldano's request to consider the interjection of race into the case as fundamental error under Rule 103(d) of the Texas Rules of Criminal Evidence.

Mr. Saldano appealed the Court of Criminal Appeals' decision to the United States Supreme Court, asking the Supreme Court to consider whether race is a permissible basis upon which the State can seek the death penalty. In a remarkable response to Mr. Saldano's request, the Attorney General for the State of Texas, John Cornyn, confessed error on behalf of the State. The Attorney General stated in his response:

Despite the fact that sufficient proper evidence was submitted to the jury to justify the finding of Saldano's future dangerousness, the infusion of race as a factor for the jury to weigh in making its determination violated his constitutional right to be sentenced without regard to the color of his skin.

On June 5, 2000, the United States Supreme Court issued its opinion vacating the judgment of the Court of Criminal Appeals of Texas, and remanded it "for further consideration in light of the confession of error by the Solicitor General of Texas." The Court of Criminal Appeals then set Mr. Saldano's case for rehearing and permitted supplemental briefing regarding the issue of race and future dangerousness. Oral argument was held on February 28, 2001. Race and future dangerousness as well as the Attorney General's authority to represent Texas in criminal cases before the United States Supreme Court were at issue.

On March 13, 2002, the Court of Criminal Appeals issued its opinion in Saldano II. The court first addressed the authority of the Texas Attorney General to confess error before the Supreme Court. The court noted that Texas statutory law requires a district attorney to request assistance from the Attorney General's office before the Attorney General is empowered to represent the State before the Supreme Court in certiorari proceedings. The court held that the district attorney's acquiescence in allowing the Attorney General to respond on behalf of the State to Mr. Saldano's petition for writ of certiorari was an implied request for assistance, and, therefore, the Attorney General was permitted to confess error in Mr. Saldano's case before the Supreme Court.

However, the court held the Attorney General's confession of error did not require the court to "blindly" overrule Specifically, the court stated that the issue to which the Attorney General confessed error was not one which had been presented to or decided by the Texas courts previously, because, as the court held in Saldano, no objection was made to Dr. Quijano's testimony at trial, and, therefore, no issue was preserved for appellate review.

The court then attempted to justify their determination that, absent an objection, the interjection of race in determining the defendant's future dangerousness was not the type of error which warranted reversal of the case. The court opined that the complained of error was merely an evidentiary matter requiring an objection to preserve it for appellate review. The court also stated that most errors of constitutional dimension require an objection to be preserved for appellate review. Further, the court opined that even if the State had offered Dr. Quijano's testimony solely for the purpose of appealing to racial prejudices, Mr. Saldano's defense attorney was still required to object to the admission of this evidence in order to preserve the error for appellate review.

In an attempt to further bolster its holding that the admission of race-based evidence did not warrant reversal of Mr. Saldano's death sentence, the court stated that the defense attorney's failure to object to the introduction of Dr. Quijano's testimony did not constitute ineffective assistance of counsel. On this basis, and despite the confession of error by the Attorney General, the court effectively declined to reach the merits of deciding the propriety of the introduction of race as a factor to be considered by the jury in determining a defendant's future dangerousness. Consequently, the court affirmed the imposition of Mr. Saldano's death sentence, with only two judges dissenting.

Justice Johnson filed a dissenting opinion addressing the failure of the majority to review the merits of the claimed error. She stated that the race or ethnicity of a defendant is an impermissible basis upon which a determination of guilt or punishment may be assessed. Further, she recognized that it is impossible to measure the effect on the jury when the factor of race is introduced at trial. She stated she would remand for a new sentence because a defendant has a right to be punished for "what he did, not who he is."

Justice Price also filed a dissenting opinion stating the introduction of Dr. Quijano's testimony was fundamental error. He emphasized that punishment decisions in death penalty cases are uniquely susceptible to the infusion of racial prejudice due to the subjective and individualized nature of capital sentencing proceedings. Justice Price argued that a defendant has a right to be sentenced free from any racial prejudice and that a defendant does not waive his right to complain of a racially-infused sentencing proceeding because of a failure to object at trial. Justice Price stated he could not join with the majority in this case because he was uncertain if racial prejudice was a factor in the jury's decision to impose the death sentence.

Chief Justice Keller chided the dissenters, in a concurring opinion to the majority, for their lack of legal analysis in support of their opinions. She stated that the dissenters are doing a "disservice to counsel for appellant, who put forward and ably argued a proposed legal basis for granting relief." She further argued that the majority opinion explains why Saldano's arguments must fail and that the dissenters had offered no legal reasons as to the incorrectness of the majority's holding.

The majority opinion, however, does not provide the analysis Justice Keller suggests. The opinion wholly fails to mention, much less analyze, why the error complained of cannot be reviewed under Texas Rule of Evidence 103(d), which allows courts to review unobjected to errors affecting a defendant's substantial rights. Nor does the majority opinion provide any real analysis as to why it should not be an absolute requirement that capital proceedings be free from any racial taint. As can be seen by the cases presented below, the Court of Criminal Appeals appears to have simply refused to recognize the fundamental nature of the error committed in the trial and punishment of Mr. Saldano

Statistics and Death: The Conspicuous Role of Race Bias in the Administration of the Death Penalty

Ruth E. Friedman
Statistics and Death: The Conspicuous Role of Race Bias in the Administration of the Death Penalty, 11 La Raza Law Journal  75, 77-81 (Spring 1999) (citations omitted) (permission requested)

As a capital defense lawyer who has represented death row inmates for over eleven years, I am most familiar with the criminal process in the state courts, particularly those in Alabama. Those of us who litigate capital cases in the South have had the opportunity to learn firsthand how charging decisions are made and, often through bitter experience, how race continues to play a major role in the machinery of death.

As in the nation as a whole, statistics reveal that the application of the death penalty in Alabama is marked by extreme racial disparities. Alabama's death row is 47% black, whereas the state population is 25% black. Although only 6% of all murders in Alabama are black-on-white, 60% of the black inmates on Alabama's death row are there for killing whites. Sixty-five percent of those executed in Alabama in the modern era have been black.

As is true in most jurisdictions, the process for charging someone with a death-eligible crime in Alabama involves a prosecuting attorney and a grand jury. Capital indictments are returned by grand juries sitting in one of the state's 67 counties. Cases are brought to the grand jury by prosecutors from the office of a district attorney who is elected in a judicial district, which sometimes covers several counties. None of Alabama's 40 elected district attorneys is black.

Grand jurors are randomly selected to serve from a list of county residents compiled from drivers' license data and other sources. Procedures for choosing the foreperson of the grand jury can vary from county to county: sometimes the presiding judge decides (with or without help from the prosecutor), sometimes the panel members choose, and at other times it is by lottery. Data have been collected on grand jury forepersons in various counties in Alabama. For example, Monroe County is 35% black. Statistics compiled for Monroe County criminal cases found that only one black had been chosen to lead a grand jury over a period of fourteen years. In Morgan County, as part of his appellate litigation, a death row inmate showed that from 1927 to the time of his trial in 1994, no black person had ever served as leader of a grand jury. Talladega County, with a population that is 31% African American, had seen only a handful of black forepersons. The chief judge in the county testified at a hearing that he handpicked the forepersons based on whom he knew and liked. Thus in the grand jury, the body that affirms or rejects a potential criminal charge, race is already a factor.

It is the district attorney, however, who decides what indictment to seek. The fundamental decision of whether to pursue a capital conviction and the death penalty rests entirely with him or her. Very few southern counties have "committee" decisions, unlike the federal government, where input is included from a number of people and is reviewed by the Attorney General. As long as a crime fits the state's definition of what can be deemed a capital offense-- murder during a robbery, for example, or during any other felony--the district attorney has discretion to prosecute it as a capital case if he or she sees fit. There are rarely any other parameters or oversight.

Because it is both highly discretionary and shielded from scrutiny, this process is especially subject to abuse. District attorneys in states such as Alabama are elected officials. They are aware of public responses to local crimes and of the political advantages to appearing tough on crime. They hold their positions only so long as they remain popular with the majority of voters. In this political climate, rarely will they be taken to task for failing to charge a defendant with a lesser offense.

It would, of course, be an unusual prosecutor (and not a politically savvy one) who would state publicly that race was a factor in her choice of charge. Unstated motivation is not easy to ferret out, particularly in the course of adversary proceedings. Litigation has sometimes made it possible to probe the exercise of charging discretion by prosecutors, and the results have been revealing. One such instance arose in Muscogee County, Georgia in 1989. The prosecutor there was seeking the death penalty for the second time against William Anthony Brooks, a young black man accused of raping and killing a white woman. Muscogee County led death penalty convictions in the state, and had the state's greatest proportion per capita of inmates on death row. At the time of Brooks' retrial, there were sixteen people from Muscogee who had received death sentences. Half of them were black.

Attorneys at the Southern Center for Human Rights in Atlanta, where I was then practicing, looked carefully at the county data on capital cases. We discovered that not only was there a substantial overrepresentation of blacks as defendants, but nearly all the capital cases had white victims. In 78% of the cases in which the Muscogee County prosecutor had pursued the death penalty, the victims were white--despite the fact that 65% of homicide victims in the area were black. Only six of the twenty-one capital cases brought in the circuit had black victims, and in half of those cases, there was more than one victim. In other words, it seemed that it took two black lives to equal one white life in the eyes of this prosecuting attorney.

We decided to see if we could prove that race actually was a factor in the decision to seek the death penalty for Brooks. We asked the prosecutor, on the record, how he determined in which cases he should pursue the death penalty. He maintained that race had nothing to do with his decisions. He said he sought the death penalty whenever the prior record of the accused or the aggravated nature of the crime (one accompanied by a felony, or a particularly brutal case, for example) warranted it. He also claimed that the desire of the victim's family for punishment was a significant factor.

Determined to find out if this was in fact true, we sought and received discovery from the trial court to test the prosecutor's assertions. We gained access to all the files the district attorney's office kept on homicides in the ten years prior to Brooks' trial. There were about 275 cases in all. We then combed each file for information regarding the offender's prior criminal history and the aggravation attendant to the crime. We then presented the information we found to a statistician who made cross-racial comparisons among these cases with the features the prosecutor had asserted had mattered most to him in deciding whether to seek the death penalty.

The results showed that even when the circumstances of the crime were comparable, the district attorney pursued the death penalty far more often when the victim was white. For example, for murders accompanied by another felony, the prosecutor sought the death penalty 47% of the time when the victim was white but only 11% when he or she was black. In cases with more than one perpetrator, the death penalty was sought in 53% of the white victim cases and 10% of the black victim cases. Statistically significant discrepancies were found in nearly every category.

We also pursued the claim that the wishes of the victims' families were a significant factor in the decisions. In Brooks' case, the parents of the dead woman were adamant that he be sentenced to death and would not consider a plea to any lesser punishment. Working from the files of the most aggravated crimes, we went to see the family members of county murder victims who were black.

Had the prosecutor's rationale been correct, they would have told us that they asked him not to seek the death penalty. None said this. What they did tell us, time and again, was that no one from the district attorney's office had ever spoken to them, much less asked their opinion. I spoke with one woman who had lost both her sons to homicide. She cried so loudly during a preliminary hearing in one of the cases that she was asked to control herself or leave the room. She learned from the television news that the man accused of killing her son had pled guilty to a lesser offense. No one had contacted her about either killing.

In sum, none of the prosecutor's reasons for seeking the death penalty turned out to be supported by the evidence. Race did play a role in his decision-making, so much so that he did not even concern himself with the wishes of survivors who were not white. After a change of venue, a racially- mixed jury convicted Brooks of Jeanine Galloway's murder, but this time voted unanimously against the death penalty. His conviction was affirmed by the Georgia Supreme Court in 1992.

The findings in the Brooks case should not be totally surprising. The country is fascinated when a blonde child beauty queen is found dead in her parents' home, or a young white British nanny is thought wrongly convicted of killing her charge. Columbus, Georgia brought out all manner of detectives, investigators and helicopter searchers when Galloway, the victim in the Brooks case, disappeared. Rarely do black defendants or people of color victimized by sexual assault or murder so capture the headlines or garner public sympathy. Since the prosecutor's actions fit so seamlessly into the culture around him, it did not even occur to him how deeply race-based his decisions were.

Racism can also rear its ugly head in plea bargaining, the stage that often follows an indictment or pretrial litigation. In an effort to avoid the electric chair, Brooks offered to forego trial, accept a life sentence and give up all right to seek or accept parole. Our legal team drafted contracts and sought the input of the Georgia Board of Pardons and Paroles regarding their enforceability. Resolute that this was a "death case," the prosecutor refused to negotiate.

This insistence on a death sentence is often politically motivated. For example, the Muscogee County prosecutor asked one father of a white homicide victim whether he wanted the death penalty, and was told that he did. The District Attorney sought and obtained death in that case. The father later contributed $5,000 to the prosecutor's successful campaign for judge in the next election. In another Georgia case on retrial, the defendant offered to plead guilty in exchange for his life but was repeatedly rebuffed. Tony Amadeo's conviction had been reversed because at his first trial, the Putnam County District Attorney had sent a memorandum to the jury commissioners instructing them on how to avoid detection while limiting the number of minorities and women on the grand and petit jury rolls. The memorandum surfaced when Amadeo was in state postconviction proceedings, but the Georgia courts refused to find anything amiss. The United States Supreme Court ultimately reversed his conviction and death sentence in a unanimous opinion, noting that the prosecutor had used his office "so as to deliberately under-represent black citizens."

On retrial the same prosecutor insisted on having a second chance. He maintained that this robbery/murder was a classic death penalty case and had to be prosecuted as such. During pretrial litigation, we filed a "Motion to Disqualify the Prosecutor" on the basis of his conduct at the first trial. We sent with it an amicus brief from leading ethics professors and prosecutors in Georgia and elsewhere who demanded that the district attorney recuse himself on account of his previous odious act. The next day the prosecutor agreed to plead the case to a life sentence. . . .

We were lucky in the Brooks case to be able to establish as clearly as we did that racial bias, conscious or unconscious, was inextricably bound up with the prosecutor's decision to seek the death penalty. We were able to empirically refute the reasons the prosecutor gave for his charging decisions, and to provide some insight into how these glaringly disparate numbers came to be. To us, the numbers in Muscogee County spoke volumes about the role racial bias played in who was condemned to die.

We did not rest on statistics, however, because we knew that from a legal standpoint they had little significance. . .

The numbers that characterize the administration of the death penalty in this country are staggeringly disproportionate by race. That our highest judicial decision-makers are willing to embrace such assumptions in the administration of justice is profoundly disturbing. Until there is a recognition that racial bias is an influence in our system of criminal justice, we cannot be comfortable with the outcomes that system produces.

It is critically important that we explore these statistics, that we educate people about how they came to be, and that we continue to conduct the kinds of inquiries that exposed the biased approach in the Brooks case. Those of us concerned with racial justice should not rest until the existence of racial disparities in the criminal justice system is acknowledged and effective remedies are instituted.

1. Senior Attorney, Equal Justice Initiative of Alabama, Washington, D.C.

The site is available without logging in. However, if you want to post a comment you must login. Your email address will only be use to provide updates on race, racism and the law.