Its nice to know we are back in the appellate business in Washington (I just happen to be working on a petition for cert.). I rather doubt this decision has ended the "turf war" (Cornyn's words, not mine), but at least there will be a different AG deciding how to respond. Prosecutors need to point out that Judge Price should switch to the Democratic Party and do what they can to support Taft in the runoff. I now place him close to Johnson as a sure vote for the defendant in almost any case coming before the court.

Greg Coleman made an interesting comment at the oral arguments in Saldano. Judge Price asked what would happen if the CCA ruled that the AG did not have the authority to confess error to the Supreme Court. Coleman responded that they would seek clarification of that ruling (having already stated that the AG would seek to confess error in Washington once again). My question is, considering I thought the CCA was the final arbiter, from whom will the Solic. Gen. seek clarification?

[This message was edited by Martin Peterson on 03-16-02 at .]

Leg., maybe, by way of a bill (the AG got someone to file a bill last session saying he could do what he did, but it disappeared), or maybe take up a cert. against us?? Maybe try to do it with civil litigation, i.e. declaratory judgment. Don't think that would work. Maybe he just meant he'd file a motion for rehearing, or maybe he just couldn't bring himself to say he didn't have an answer. Sometimes its tough to make sense with 9 of them peppering you and your time running out. (I'm sure I never make sense).

I suppose Cornyn could ask for an AG opinion.

Well, there is no question the AG has exclusive authority to represent the State in the federal habeas action, so I guess they will just ignore Strickland and agree that Saldano's trial counsel was ineffective and that his client was prejudiced. Will the federal judge also ignore Strickland or decide this was a matter of trial strategy, or that prejudice is speculative? Can the local DA file an amicus brief in federal court? Can you get just a new sentencing hearing on habeas corpus? I thought you were attacking the conviction? Will the failure to make a single objection to evidence that appears to have been admissible under Rule 705 now constitute ineffective assistance? It seems to me that we can disagree with Quijano's criteria all day long, or accuse him of being racist for utilizing this factor, but doesn't the expert still get to choose the "facts" upon which he bases an opinion. I'm for the rule of law above political correctness, even when the stakes are as high as they are in this case. Bad cases do make bad law.

Rob, in your column in the latest Prosecutor you rightly point out that we continue to work together with Cornyn's group despite Saldano. In addition to the people you mention, I think I should point out that when I was recently working on a pet. for cert. I contacted the Solicitor General's Office for advice and found Julie Parsley and Dolly Garcia to be both friendly and helpful. Maybe that's just the role they will feel relegated to, but my contact came before the Saldano handdown.

Collin County DA is taking on the AG, again, to recover the State's right to be represented:

http://www5.law.com/lawcom/displayid.cfm?statename=TX&docnum=131801&table=news&flag=full

John Bradley
District Attorney
Williamson County, Texas

The Fifth Circuit Court of Appeals has once again put the State back into the driver's seat. The Court told the district court that it had to consider the state's motion to intervene in Saldano. Remember, the AG is refusing to defend the state in the federal writ, even though there is a perfectly good failure to preserve argument, along with a harmless error theory.

See today's case of the day for a description.

John Bradley
District Attorney
Williamson County, Texas

Someone will probably dust off that AG bill again, so I guess we'd better watch out . . .

I suppose anything is possible, but the AG who last sought that bill is no longer in that office, and the current AG, at least during the campaign, agreed that DAs should handle direct appeals. The AG already clearly has statutory authority to represent the state in federal postconviction writs.

It would make an interesting question as to whether such authority violates the separation of powers by taking power away from DAs. I'm not sure any DAs want to become federal writ experts and, by and large, the AG does a great job representing DAs in this area.

The bigger question, though, is whether the AG may decide not to represent the state's interest and abandon a state defense without giving the DA an opportunity to make the argument himself. And now the remand of Saldano will likely decide whether the AG may exclude a DA who wants to defend himself.

What other lawyer could treat his client in this manner?

John Bradley
District Attorney
Williamson County, Texas

I worked in the Attorney General's office on federal writs and saw the lack of enthusiasm from the DA's office in responding to the state writs. If the DA's do not adequately brief the issues in response to a state writ, I wonder if the DA's would adequately respond to the federal writs. Additionally, I have occassionally encountered a lack of cooperation from some DA's when seeking information in order to better respond to the federal writs. Our average response to a federal writ was longer than many appellate briefs written by the DA's offices. Are the DA's willing to take on this additional task. While I was there,I averaged responding to 10 federal writs a month, most requiring a 15-20 page brief. And of course if the DA's want this task, do they also want to respond to the challenges of parole revocations, and disciplinary hearings?
Additionally, the AG's office attempted to present training on the impact of the State Writ on the Federal process, but it is my understanding that the DA's did not want any part of that learning process. So instead I was able to instigate training with the Judges at the Judicial Conference in August 2002. At least the judges were interested in hearing how the State Writ process impacts the Federal Writ process.

I do not believe anyone is suggesting that the duty of responding to federal writs be transferred from the Attorney General. Rather, Collin County is fighting for the chance to represent the State in a particular single instance where the local prosecutor strongly disagrees with the manner in which the AG is supposedly representing the public interest. No sound argument can be made that the original prosecutor should be excluded from having any input.

Perhaps you can explain why the state habeas proceeding is not considered a civil matter as well, i.e., one within the jurisdiction of the AG. I am not suggesting the AG should be representing the State in 11.07 proceedings. I just find it interesting how the two tasks are completely separated, since as you point out, the state ruling sometimes affects the subsequent federal proceedings especially after AEDPA.

PKDyker makes some good points. Some offices do a very good job of responding to state writs, obtaining detailed affidavits and specific findings of fact to support denial of the writ. That evidence and findings makes the AG's job much easier.

Unfortunately, too many offices ignore the state writ, counting on a statutory inaction to equal a denial of the writ. While that might work in state court, it is looked upon with great unease in federal court. It often means the AG has to do a full evidentiary hearing and puts the state's judgment at far greater risk of reversal.

But, that is not what happened in the Saldano case. In that case, the defendant did not even file the expert witness issue in the state writ. The issue was raised only on direct appeal (for the first time).

So, it seems a little odd that the AG should go out of its way to insert itself into a direct appeal (that raises an issue for the first time) and deny the state a voice in the federal writ (after the issue wasn't even raised in the state writ).

John Bradley
District Attorney
Williamson County, Texas

As of 9/1/99 we're required to file a writ response. Prior to that, we only filed responses in the ~1-2% of writs that had arguable claims relating to substantive matters. This is non-capital. I think most DA's were responding to the capital writs even before 11.071.

[This message was edited by John Rolater on 02-28-03 at .]

Turns out what I said above has some flaws. First, the effectiveness of counsel is apparently not the issue (yet). Instead, this case involves the "constitutional right to be sentenced without regard to the color of [one's] skin", an error which in and of itself can seriously undermine "the fairness, integrity, or public reputation of the judicial process" and which the AG says is a fundamental or non-waivable error. Also, as John points out, the issue has now become whether the AG does indeed have the exclusive right to represent the State in federal court. I suppose Collin County's thought is that rather than the two agencies competing for attention (the DA as a mere amicus), if the DA becomes the exclusive counsel for the State the waiver issue will have to be addressed.

In order for the AG to succeed, must there be proof that the jury in fact considered Saldano's national origin or ethnicity in determining he presented a future danger? Because, it seems we are otherwise talking about the admissibility of evidence-- something that should not get much attention in a collateral attack.

It should be fun to see how the District Court resolves what it viewed as a politicized question better left to the Texas Legislature, and to see how strenuously the new AG seeks to exclude the DA. Certainly looks like the turf war has moved to a new venue.

Just in case Collin County is reading this....

I recently read the unpublished opinion of the 5th Circuit Court of Appeals in the Delma Banks case. This is the guy who got a stay of execution from the Supreme Court last week (thereby depriving him of the title of 300th executed man in Texas).

One of the issues raised by Banks was a claim that a juror or jurors was unfairly excluded because of race. The defendant had not objected at trial but claimed that this was a nonwaiveable issue. Sound familiar?

Now, here is the really interesting part of this: The AG argued that this racial issue, just like any other procedural issue in a trial, was waived by a failure to object. Hello? Has the assistant AG not read the history of Saldano, where the AG has spent several years trying to reverse this well-accepted state procedural default rule?

Perhaps Collin County could point out to the 5th Circuit (whether in their amicus brief or as the party representing the state) that the AG is not being consistent in its positions.

By the way, the 5th Circuit agreed and said that racial issues are not subject to different rules and the procedural default rule applies. The string cite that follows that conclusion would make a great reference in the Collin County reply to Saldano's writ.

John Bradley
District Attorney
Williamson County, Texas

Time to revive this thread. A federal judge ordered a new punishment trial for Saldano. Now, the state must appeal the decision. Can the prosecutor do the appeal, or do we have to convince the AG?

John Bradley
District Attorney
Williamson County, Texas

Looks like the Collin County DA is answering the call on this one.

Good luck.

A song has the line: "I really don't know much at all." That describes how I feel when reading Judge Schell's version of Saldano. To me, the case has always involved a supposed error under Rule 705 (d) in that the court should have excluded the objectionable underlying fact that came as part of Dr. Quijano's opinion because of the danger it would be used for a purpose other than as explanation or support for the opinion or because it was unfairly prejudicial. That error was obviously not preserved for appellate review.

So instead we now have the remarkable proposition that where admission of such evidence violates the Eighth Amendment because it might deny a defendant "an individualized sentencing determination", it will result in reversal of the punishment decision of the jury on collateral attack. I always thought the rule was that even constitutional error can be waived by a failure to object. Furthermore, where a habeas petitioner has procedurally defaulted, he must prove by clear and convincing evidence that but for the constitutional error no reasonable juror would have found him eligible for the death penalty. Sawyer v. Whitley. Those rules are, of course, turned on their head in Saldano. Why does the Attorney General not have an interest in preserving the contemporaneous objection rule and the rules of habeas review? Or better yet, why does not any prosecutor have standing to protect this interest-- which is vital to his ability to finally convict any given defendant?

It would be nice if the opinion could be limited to just the result for Saldano, but isn't the new presumption of harm from the slightest "constitutional error" and the failure of the court to require a habeas applicant to demonstrate cause and prejudice pretty dangerous to the finality of a great many prosecutions? What if the AG consented to the intervention, just so the court might have to address these issues? I think Saldano will get the death penalty once again upon retrial based on the constitutionally acceptable evidence that he is deserving. But, if he does not, will all this have assured that justice can be done? It is a fiction to say the AG represents the Director in a civil action. The AG must consider how that representation affects the finality of other criminal convictions and should not just ignore what the local prosecutor has to say (whether he/she is entitled to do so by law or not). And why have state appellate review if admissions of error and implied concessions of harm can so easily override the result of that review?

The AG should now (finally) step up and perfect an appeal and make the arguments that ought to be made.

[This message was edited by Martin Peterson on 06-22-03 at .]

Here are the results of one case retried after the Saldano debacle: Death Penalty Again.

John Bradley
District Attorney
Williamson County, Texas