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We criminal defense lawyers tend to beqmck to critiuze the Court of Cruninal Appealswhen it does things which we believe to be unlustand improper. Undeniabb, over the past severalyears the Court has made numerous decisionswhich simply haven't passed the "smell test", atleast to our bloodied noses. But are we being fairand reasonable in our haste to rebuke? After a&ours is to nrovide defense nrotection and advocacyfor society's lowly outcast and damned. Whoare we to judge that august and revered flock of legal scholars, each of whom ascended to that lofty perchby edict of the people of this great state?With cool refleaion, let us struggle to muster some degree of objectivity with which to fairlyexamine one of the Court's latest controversies. The facts, simply stated, are as follows:Fact One: At least seven men are on death row in T&as on the strength, atleast in part, of the testimony of Dr. Walker Qmrdtlo, a clinical psychologistwho tesffied that the race of the defendant was a valid and legtimate factorupon which he could predict future dangerousness.Fact lbo: La~t spring Texas Attorney General John Cornyn concluded thatthese seven death row mates were entitled to new sentencing hearingsbecause of Dr. Quijano's racial remarks during the punishment phases oftheir aals He sad those remarks nolated the conshtutional rights of thesekillers.Fact Three: Just as the Court of Criminal Appeals had previously summarilydisregarded this issue, the coun ignored Attorney General Cornyn.Bob HintonMESSAGEFact Pour: last June Mr. Cornyn admitted to the U.S. Supreme Court thatthe state had erred in using Dr. Qwjano's testimony in the sentencing phaseof the case of condemned killer Victor Saldano. Mr. Cornyn went even furtherto inform the Court that he had identified six other death sentences,including that of Michael Dean Gonzales, which had been rainted by Dr.Quijano's testimony Cmog Mr. Cornyn's admission of error, the U.S.Supreme Court ordered the Court of Criminal Appeals to reconsider itsdecision to deny Saldano a new sentencing hmdng.Fact Five: The Court of Criminal Appeals responded by questioningAttorney General Cornyn's very authority to represent the state before theU.S. Supreme Court in the Saldano case, and ordered dl sides to submitbriefs addressing that issue. A hearing was set for late February, 2001.Okay, what would be a fair and objective interpretation of these facts? Is Attorney GeneralCornyn (formerly a Texas Supreme Court Justice, and a Republican), all wet? Is he some radical bleedingheart liberal? Has he exce'eded his authority as Attorney General? John Colnyn says no. He firmy, believes the law to he clear that the Attorney General is the lawyer for the State of Texas before the U.S.Supreme Court. He also believes that the constitution applies even to killers. He seeks to improve theintqity of our system of criminal justice. "We cannot have a criminal justice system that enjoys theconfidence of the public if race is going to be considered at all in determining whether the ultimatepenalty will be given," he has saidStan Schneiider, Mr. Saldana's Houston lawyer, and one of TCDMs very brightest stars, made aprofound observahon. "The Attorney General made a moral and legal decision, not withstanding the
Court of Criminal App~ls' . decision," he said. Each of us aodauds the&.admilable position Mr. Corn111 has taken. It was not a popular politicalposition, but, as Stan so aptly pointed out, it was a n~oral decision.Again, if our assessment of this entire controvmyca~'t be trustedfor objectivity, where do we look for a viewpoint which speaks to andfor the far right? How about Tlie D.dlas Mon~ing News? Surely there is nomore conselvative voice for law, order and strict enforcement.In early Febmaq the Dallas Morni~~g Rews expressed its editorialopinions on this issue, stating that Attor~~ey Gere~d Cornyn was correctin his opinions and actions, and that the Court of Crinunal Appealswas wrong, and that it uras imprudent for the burl to stage a showdownwith ll~c US. Supreme Court. The editorial concluded that hZ1: Cornyn'sposition should not be ignored by the Court of Crimi1al.4pppeals.Well, there )an ha\re it courts fans. Our hun~ble ooint ofview regarding this latest national embarrassment, suspect as i;luay beto some, happens once again to he shared by the ponwfi~l and conservative.We are not alone.1 think Stan Sclmeider has touched upon the one characteristic,its conspicuous absence being comnlon to all of the controversialdecisions which have rocked our system of c~iruinal justiceover the past seve~al years; it is tl~e characteristic of mo~ality!Tnle enough, the Court of Criminal Appeals is not legallybound to consider momlily in arriving at its decisions. The Court isnot, however, prohibited from being inhenced by some semblance ofmorality in making its decisions, all of wluch profoundly impacts eachof us, not just societ)>s perceived vermin.BobMid#dP.neiskellFortworth (1999-2000)KenthsdKIHerHouston (1998-1999)E.G. "&wy" M dAustin 11997-1998)MdLBoisfodAustin(1996-1997)Bin WdaemperLubbock(1995-1996)RomddLOorrnronDaiias(1994-1995)David R BirwHouston (1993-1994)OerclklH.OddrkinSan Antonio (1992-1993)R i d l m d h ~Dallas (1991-1992)Tim EvansForth Worth (1990-1991)Judge J.A. "Jim" BoboOdessa (13%-192)Edwarl A. MtdkwHouston (1988-1W)axa(er D. BultsSan Antonio (1987-1988)Knox Jones'McAiien (1986.137)Lou& Dugas, Jr.Orange (1985-1986)aii L "Saappy" HdmwLongview (1984-1985)Thomas Gilbert Shqwt, Jr.Brownsvile (1983-1984)aii w. BmwnLubhock(1982-1983)JudgeRoberID.JonesAustin (1980-1981)V i m Walker PeriniDailas(1979-1980)GeorseF-Luquetk'Houston 11378-1979)\Ilkklon HdcombTyler (1976.1977)C. David EvcdSan Antonio (1975-1976)George E. Gilk-Lubhock(1974-1975)Phil Buleson*Dallas (1973-1974)c. Admy hilorrx, Jr:Houston (1972-1973)Hon. hrnk MalolleyAustin (1911-1972)RRSTPRESIDENTSmRCH 200 l ( WWW.TCDLA.COMI VOICE FOR THE DEFENSE I 7 I
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