Texas fight takes on race and death penalty

There is a correlation between race and violent behavior, the expert witness testified. Just look at the disproportionate numbers of black and Hispanic men in prison.

That testimony has now touched off a Texas-size controversy, involving the Lone Star State's attorney general, its highest criminal appeals court, and seven men on death row. At issue is whether the expert witness's words unfairly influenced juries to mete out death sentences - instead of, say, life in prison - in the cases of the minority convicts.

Attorney General John Cornyn, a Republican, has acknowledged that the testimony should not have been permitted - and that the seven inmates deserve new sentencing trials. But so far, the Texas Court of Criminal Appeals has refused to grant all seven inmates new hearings.

The issue is now attracting international attention because one of the men is an Argentine. Victor Hugo Saldano was convicted and sentenced to die for the 1995 robbery and murder of a Texas man.

Mr. Saldano's guilt is not in question. The issue is whether the prosecution's argument that Saldano is a threat to society, in part because he is Hispanic, swayed the jury's decision to levy the death penalty.

"One of the clearest principles of American constitutional law is that race is an inappropriate basis upon which to make official decisions," says James Liebman, a professor at Columbia University Law School in New York.

The 14th Amendment mandates that US law applies equally to all. The Texas Constitution says the same. However, as recently as the 1950s, judges in the South, including Texas, allowed juries to assess different penalties to people of different races convicted of the same crimes.

Under Texas law, a jury assessing the death penalty must find that a defendant poses a continuing threat to society. Expert witness Walter Quijano, a psychologist, told Saldano's jury there are 24 statistical predictors of criminal behavior, including socioeconomic status, family history, drug abuse, the deliberateness of the crime, and the defendant's age and gender.

Quijano also told the jury that because blacks and Hispanics are overrepresented in the Texas criminal-justice system, race is correlated with criminal behavior.

The jury sentenced Saldano to death.

Saldano's request for a rehearing was denied by the Court of Criminal Appeals because his attorney had not objected to the race argument at trial.

Enter the Supreme Court

Subsequently, the Argentine consul in Texas obtained a new lawyer for Saldano, who took the case directly to the US Supreme Court.

At that point, Attorney General Cornyn learned of the case and agreed that race should not have been raised during trial. In an unusual step, he submitted a brief to the Supreme Court, arguing that Texas' Court of Criminal Appeals erred in upholding Saldano's death sentence.

"The use of race in Saldano's sentencing seriously undermined the public reputation of the judicial process," Mr. Cornyn's brief to the US Supreme Court stated.

The high court ordered the Texas court to reconsider Saldano's case in light of the attorney general's confession of error, and granted Saldano a stay of execution. In response, the Texas criminal appeals court questioned whether Cornyn, as the state's attorney, is constitutionally bound to support its decisions even if he finds them troubling.

Last month, the Texas court reheard Saldano's case for a new sentencing hearing. Representatives of eight Latin American governments attended the arguments.

They "obviously have a great interest in the outcome of this case," says Houston lawyer Scott Atlas, who filed a friend-of-the-court brief with the US Supreme Court, supported by 11 Latin American nations, including Argentina, Mexico, and Venezuela.

In addition to deciding whether Saldano deserves a new hearing, the jurists are in the unprecedented position of deciding who has authority to regulate the court itself. If it rules against Cornyn, he and his successors would be prohibited from disagreeing publicly with the court in future cases.

Quijano, for his part, says he has been testifying for 20 years, mostly for the defense, but also as a prosecution witness. No lawyers have objected to his testimony in the past, he says.

Race is significant because it is linked to problems such as poverty, lack of opportunity, and poor education - but correlations are not causal, Quijano says. "Nobody in his right mind would say that because someone is black, he is violent." But if race is not discussed, he adds, "then we quit asking, why is it like that? Then we don't do anything about their schooling, their education - that is the root of the problem."

Quijano claims it is accurate to say that race is correlated with a high incidence of contact with the criminal-justice system. African-Americans, for example, make up 12 percent of Texas' general population, but 41 percent of death-row inmates.

Systemic bias?

But others remain unconvinced. "I take any use of race as a predictor of criminal or violent behavior ... to be junk science," says Bryan Stevenson of the Equal Justice Initiative in Montgomery, Ala. "Every analysis shows that people of color don't use drugs more than white people. Yet at each stage of the [criminal] process, people of color loom larger.... It says a lot about the way we arrest, prosecute, and convict based on race."

The district attorney in Saldano's case, Tom O'Connell, says the race factor was a small part of Quijano's testimony, and likely played no part in the jury's sentence of death. The race testimony "shouldn't be defended," he says, but it has been taken out of context and was not presented in an inflammatory way.

Meanwhile, the Texas Legislature is considering a bill that bans the use of race or ethnicity as a factor in criminal sentencing.

(c) Copyright 2001. The Christian Science Monitor