Is there really a Texas Solicitor General? Why does the Texas Court of Criminal Appeals Ignore SCOTUS?

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CONFESSING ERROR
By EDWARD LAZARUS
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Friday, Jun. 16, 2000

Earlier this month, Vincent Saldano, one of the 468 inmates on Texas' death row, had his death sentence vacated. This development was duly reported in the press. But accounts of Saldano's good fortune uniformly failed to appreciate what makes his reprieve truly newsworthy and potentially a landmark.

Saving Saldano: Texas Confesses Error

Saldano was not freed from the prospect of execution by the actions of a court or even, as occasionally happens, by the clemency of a governor. His death sentence was erased because Texas, through its newly created office of the solicitor general, "confessed error" in his case -- that is, it admitted, despite defeating Saldano's initial appeals in court, that his death sentence was illegally obtained. Quite simply, this never happens, either in Texas or in the dozens of other states with active death penalty laws. It is thus worth pausing to consider the value and potential implications of Saldano's case as well as the notion of confessing error.

Saldano had received a death sentence in part due to profoundly troubling testimony by a state expert witness at the sentencing phase of his trial. The expert, a clinical psychologist named Walter Quijano, suggested that Saldano should be executed because, as an Hispanic, he posed a special risk of future dangerousness to society. To support this astonishing conclusion, the expert pointed out that Hispanics make up a disproportionately large amount of Texas' prison population.

It does not take a tenured professor of constitutional law to realize that linking racial identity with a propensity for violence was not only bizarre but also a violation of the equal protection clause. Indeed, that it should take a confession of error by the state to correct this problem highlights at least two problems in the current administration of the death penalty. First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities. The same flaw identified in Saldano's case infects at least seven other Texas capital cases. Second (and perhaps even more distressing), courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases. After all, before the state's confession of error, Saldano had lost all of his appeals.

Under these circumstances, one might think that confessions of error would be, if not commonplace, at least occasional. On average, the Solicitor General of the United States confesses error in two or three criminal cases every year -- even though it is a safe bet that federal prosecutions, conducted by better trained lawyers with greater supervision, are less likely to contain obvious legal errors than their state counterparts. As the Supreme Court recognized when endorsing the practice in 1942, "the public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error, when, in their opinion, a miscarriage of justice may result from their remaining silent." But as a practical matter, states never confess error in death penalty cases (even though courts overturn roughly two-thirds of all death sentences as legally infirm) -- and some states candidly admit that their policy is never to confess error.

Mutual Distrust

Why? One crucial and usually overlooked factor is the deep antagonism that has grown up over time between state death penalty prosecutors and the death penalty abolitionist lawyers who seek to foil them in every case. The abolitionists, prosecutors know all too well, never concede that their clients deserve the death penalty or that the death penalty was legally imposed -- no matter how flimsy their arguments in a given case. Rather, they use every procedural and substantive trick in the book to delay executions.

There can be no denying that such abolitionist tactics have angered and frustrated state prosecutors. And one response to these understandable emotions has been for prosecutors to mirror the fight-to-the-bitter-end approach of their opponents.

The problem with this reciprocation, however, is simply that the ethical duties of prosecutors and defense attorneys are vastly different. Defense attorneys are duty-bound to scratch and claw to win for their clients. Prosecutors, by contrast, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.

That may sound trite and perhaps overly idealistic, but it has a practical side as well. Prosecutorial confessions of error -- knowing when to fold them, as it is known -- establish credibility. They create trust in the system, a sense that someone is being careful and exercising sound judgment, that extends far beyond any single case. And that can make a world of difference for someone like me, who is not morally opposed to the death penalty but skeptical of how it is imposed.

Death Penalty Politics

In addition, the reluctance of state prosecutors to confess error is a clear reflection of how politics affects the death penalty. Up until now, anyway, undoing a death sentence was akin to political suicide for an elected district attorney or state attorney general, or for any state official with ambitions for re-election or higher office. And yet the willingness of Texas' new solicitor general to confess error in the Saldano case suggests a possible turning point. With the current groundswell of death penalty opposition based on the possibility of executing an innocent person, elected officials may now find some advantage in approaching capital cases (even those where innocence is not an issue) with a greater degree of care and honesty.

case will start a broad trend. But there is reason to believe that the tide is indeed turning. On June 9, Texas Attorney General John Cornyn announced the results of an investigation into other death penalty cases involving testimony by state expert Walter Quijano. Cornyn acknowledged that Dr. Quijano had provided testimony in six other death penalty cases similar to his improper testimony in the Saldano case. Cornyn's staff has advised defense lawyers for the six inmates now on death row that his office will not oppose efforts to overturn their sentences based on Quijano's testimony. In response, a pessimist might note that Texas is appealing a ruling in another capital case that the defendant received inadequate counsel -- when, indisputably, his lawyer slept through much of the trial. But doing the right thing has a contagious quality to it. Or at least so we can hope.

Edward Lazarus, a former federal prosecutor, is the legal correspondent for Talk Magazine and the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.