Saldano v. Cockrell

• Decision Date: 12 June 2003
• Docket Number: Civil Action No. I:02cv217.
• Citation: 267 F.Supp.2d 635
• Parties: Victor Hugo SALDANO, Petitioner, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Eastern District of Texas

267 F.Supp.2d 635

Victor Hugo SALDANO, Petitioner, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

Civil Action No. I:02cv217.

United States District Court, E.D. Texas, Beaumont Division.

June 12, 2003.

COPYRIGHT MATERIAL OMITTED

Stanley George Schneider, Thomas D. Moran of Schneider & McKinney, Houston, TX, for Petitioner.

John Anthony Stride, Collin County District Attorney Office, McKinney, TX, for Intervenor-Plaintiff.

Julie Caruthers Parsley, Attorney General's Office, Austin, TX, for Respondent.

John Anthony Stride, Collin County District Attorney Office, McKinney, TX, for Tom O'Connell and Matthew Paul, movants.

Scott J. Atlas, Sarah Beth Landau of Vinson & Elkins, Houston, TX, for Government of the Republic of Argentina.

MEMORANDUM OPINION

SCHELL, District Judge.

Victor Hugo Saldano ("Saldano"), an inmate confined in the Texas Department of Criminal Justice, Institutional Division, filed an amended petition for a writ of habeas corpus on August 5, 2002. Saldano challenged his death sentence imposed in the 199th Judicial District Court of Collin County, Texas in cause No. 199-80049-96, styled The State of Texas vs. Victor Hugo Saldano, a/k/a Victor Rodriguez. For the reasons set forth below, the court finds that the amended petition is well-taken and it will be granted.

Factual and procedural background

On November 20, 1995, Saldano kidnapped and killed Paul King. King's car was parked in a parking lot by a grocery store in Piano, Texas. Saldano and an accomplice forced King into his car and drove to a secluded country road. Saldano shot King five times, took his watch and wallet, and left his body by the roadside. The kidnappers drove King's car for a short time before abandoning it. Saldano was arrested within a few hours of the killing.

On January 24,1996, Saldano was indicted for capital murder, and on July 11, 1996, he was convicted by a jury of the charge. The trial court subsequently conducted a punishment hearing. Under Texas law, the jury is required to determine whether there is a probability that the defendant will commit acts of criminal violence that will pose a continuing threat to society. To establish this element, the State of Texas, represented by the Collin County Criminal District Attorney ("District Attorney"), presented the expert testimony of Dr. Walter Quijano.¹

Quijano testified that in his opinion, there was a probability that Saldano would be dangerous to society in the future. Asked to explain the basis of his opinion, Quijano said that his opinion was based on an analysis of 24 factors. One of the factors that Quijano used to predict future dangerousness was race and ethnicity. He testified that Saldano's Hispanic ethnicity increased the likelihood that he would be a danger in the future. Quijano explained that Hispanics were over-represented in the Texas prison system, and to him this fact suggested a correlation between ethnicity and future dangerousness. Quijano admitted that other factors, such as education and economic status, are at least partly responsible for that over-representation. He testified that no particular weight should be given to any factor and that the jurors should make the determination for themselves on what weight to give each factor.

Saldano's counsel did not object to Quijano's testimony. Instead, he cross-examined Quijano about the validity of race and ethnicity as a factor and whether Saldano, an Argentine national, should be categorized as Hispanic. He also offered contrary expert witness testimony discounting the relative value of race and ethnicity as a predictive factor.

In his closing arguments, the prosecutor did not emphasize Saldano's race and ethnicity, although he did tell the jury to rely on the 24 factors about which Dr. Quijano had testified:

Our expert told you [that there was a probability that Saldano would be dangerous in the future] and you can have confidence in his opinion beyond a reasonable doubt because of his qualifications and his background, and his expertise.

Consider what he did tell you. He didn't tell you this man is a danger—I mean, he did tell you that, but how did he get there? This is how he told you to get there.

He gave you factors or markers to go through, 24 of them, outlining them. And he wants you to put in what you've heard and learned about this offense and the defendant, [and] plug them into that formula. This is a formula recognized in the field as to what would constitute dangerousness in a person. You do the work and plug it in.

On July 15, 1996, the jury found that there was a probability that Saldano would commit criminal acts of violence that would constitute a continuing threat to society, and it further found that there were not sufficient mitigating circumstances to warrant the imposition of a sentence of life imprisonment rather than death. Accordingly, the trial judge sentenced him to death.

On appeal, Saldano claimed that he was denied due process of law because his race and ethnic background were improperly used to support the finding of "future dangerousness" in the punishment phase of his trial. The State of Texas, represented at this point by the District Attorney and the Texas State Prosecuting Attorney ("Prosecuting Attorney"), contended that this claim was not preserved for review because Saldano did not object to Dr. Quijano's testimony at trial. On September 15, 1999, the Texas Court of Criminal Appeals affirmed Saldano's conviction and sentence.² It refused to consider the denial of due process claim because Saldano's trial counsel had not objected to Quijano's testimony during the trial. Saldano then petitioned the Supreme Court of the United States for a writ of certiorari, and filed a petition for a writ of habeas corpus in this court.

At this point, the Texas Attorney General ("Attorney General") replaced the Prosecuting Attorney as counsel for the State of Texas. In its response to the petition for writ of certiorari, the State confessed error on Saldano's claim. The Supreme Court granted the writ of certiorari, vacated the Texas Court of Criminal Appeals' judgment and remanded the case to that court for further consideration in light of the confession of error. Saldano v. Texas, 530 U.S. 1212, 120 S.Ct. 2214, 147 L.Ed.2d 246 (2000). In light of this ruling, Saldano voluntarily dismissed his federal habeas corpus petition.

After the Supreme Court's ruling, four other death-row inmates, each of whom had been sentenced to death as a result of punishment phase hearings in which Quijano gave substantially similar testimony, petitioned the federal courts for new sentencing hearings. In each of those four cases, the Respondent, represented by the Attorney General, confessed error and in each case the federal court granted relief.³

On remand, the Texas Court of Criminal Appeals reinstated Saldano's conviction and death sentence. Saldano v. State, 70 S.W.3d 873 (Tex.Crim.App.2002.) In the proceedings before that court, the State of Texas was represented by the Prosecuting Attorney. (The District Attorney and the Attorney General were both allowed to file briefs amicus curiae.) The Prosecuting Attorney raised the defense that any error in the admission of Dr. Quijano's testimony had been waived by Saldano's failure to object at trial. The Texas Court of Criminal Appeals, based upon this defense, again refused to consider the merits of the due process claim. Id.

On April 12, 2002, Saldano refiled his petition for a writ of habeas corpus in this court, again raising his due process claim as well as a claim of ineffective assistance of counsel. Respondent Janie Cockrell ("the Director"), represented by the Attorney General, explicitly waived the defense that the claim was barred under the doctrine of procedural default, confessed error on the claim, and joined in Saldano's request that he receive a new sentencing hearing. On July 16, 2002, this court allowed the District Attorney and Prosecuting Attorney (jointly) and the Republic of Argentina to file briefs amici curiae, but abstained from deciding the District Attorney's motion to intervene on the grounds that the issue of whether the District Attorney should be allowed to raise an affirmative defense that the Attorney General on behalf of the Respondent had explicitly declined to raise involved a question of conflicting litigation strategy best left to the State of Texas to resolve. On August 5, 2002, Saldano filed an amended petition dropping the ineffective assistance of counsel claim, and on August 13, 2002, the District Attorney appealed this court's denial of its motion to intervene to the United States Court of Appeals for the Fifth Circuit. On February 18, 2003, the Court of Appeals reversed this court's July 16, 2002, order abstaining from deciding the motion to intervene and remanded the case to this court with instructions to decide the motion to intervene on the merits. Analysis

A. the motion to intervene

Fed.R.Civ.P. 24(a)(2) provides that a person shall be permitted to intervene if he claims an interest in the transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the existing parties to the litigation adequately represent his interest. The "interest" an intervener claims must be direct, substantial, and legally protectable. New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.)(en banc), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984).

In the present case, the District Attorney claims that he has an interest in the sentence of death imposed upon Saldano and an interest in not having to conduct another sentencing hearing. It is undisputed that the respondent, represented by the Attorney General, is not seeking to protect these interests and that...