Victor Saldano was sentenced to death in 1996 for kidnapping and killing a man in Texas. In 2003, with the help of volunteer attorneys at Schneider & McKinney and Vinson & Elkins, the U.S. District Court for the Eastern District of Texas granted habeas relief.
During the punishment phase of trial, the State called a clinical psychologist who testified that Victor’s race should be considered when determining whether Victor would be a “future danger” because there were a disproportionate number of Hispanics in prison compared to the general population. The jury found that Victor would be a future danger to society and sentenced him to death. On appeal, the court ruled that Victor could not challenge the jury’s use of race to determine future dangerousness because his counsel failed to object at trial.
When Victor appealed the case to the United States Supreme Court, the Attorney General of Texas issued a remarkable statement:
Despite the fact that sufficient proper evidence was submitted to the jury to justify the finding of Saldano’s future dangerousness, the infusion of race as a factor for the jury to weigh in making its determination violated his constitutional right to be sentenced without regard to the color of his skin.
The Supreme Court vacated Victor’s death sentence and remanded the case. The Texas Court of Criminal Appeals for the second time upheld the death sentence, again in large part because Victor’s trial attorney had not objected to the psychologist’s testimony concerning race. The U.S. District Court for the Eastern District of Texas, however, found that the introduction of Victor’s race as a basis for future dangerousness was constitutional error that could be considered even if waived by trial counsel. The district court granted habeas relief, and its decision was upheld by the Fifth Circuit Court of Appeals. Soon after, the Texas legislature passed a law banning the use of such testimony in future cases. Six other men in Texas were sentenced to death based on similar “expert” testimony.