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Texas psychologist speaks out about his testimony on race and crime

June 9, 2000
Web posted at: 6:56 p.m. EDT (2256 GMT)

By Raju Chebium
CNN Interactive Correspondent

WASHINGTON (CNN) -- Clinical psychologist Walter Quijano said he has never been criticized for the content of his expert testimony for prosecutors and defense lawyers in Texas. For 20 years, he said Friday, he has used defendants' race as a factor in determining whether they are likely to commit crimes in the future.

VIDEO CNN's Charles Zewe investigates the charge of considering race when sentencing a convict to death. QuickTime Play Real 28K 80K Windows Media 28K 80K     TRANSCRIPT Interview with Gary Graham, Texas death row inmate scheduled for execution     ALSO Supreme Court throw's out Texas killer's death sentence

In the sentencing phases of criminal trials, juries consider future criminal behavior of the defendant in deciding whether life in prison or death is the appropriate punishment. If jurors determine that potential for violence is high, defendants are more likely receive the death penalty, experts say.

In a case involving Victor Saldano, a Hispanic defendant and a citizen of Argentina convicted of murder, Quijano's testimony about 24 factors of "future dangerousness" -- which included race -- caused a furor. The matter reached the U.S. Supreme Court.

Saldano's lawyers argued on appeal that their client received the death penalty in 1996 because of his race. The state courts said the mention of race was not a flaw serious enough to warrant a new sentencing hearing for Saldano.

In an unusual move, state Attorney General John Cornyn joined Saldano's lawyers in their appeal to the nation's highest court. Cornyn made a "confession of error" regarding the race issue and asked the Supreme Court permission to grant Saldano a new sentencing hearing.

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The court granted the request last Monday. The appeal did not dispute Saldano's conviction.

On Friday, Cornyn said Saldano will get a new sentencing hearing, adding that eight other inmates who got death sentences based on Quijano's testimony may also receive fresh sentencing hearings.

Texas officials said it is likely Saldano will get his new hearing in the fall.

Testimony comes under fire

That opened Quijano's testimony for criticism. Quijano, who was born in the Philippines and whose father was of Spanish ancestry, said he has been "accused blatantly of racism and doing junk science."

"When you look at a problem, you have to consider all the factors that you identify and not ignore (selected ones) because of political reasons," said Quijano, who earned a doctorate in clinical psychology at the University of Hawaii.

"It makes me feel defensive, like what are people thinking about me? Then I think about what actually happened and I am comforted that ... I do put things in context. Once people look into it, they will say, 'It's not that bad.'"

He said "any" psychologist would agree that, based on prison statistics which show that minorities are represented in disproportionately high numbers compared to the general population, it is valid to construe race as a predictor of future violence.

"They will say yes. But the question is do we talk about it?" he said.

He said he has testified in about 100 capital cases.

The opposing view

But other psychologists say race need not be invoked at all in testimony meant to help the jury decide whether a particular defendant must be put to death or allowed to live.

Mary Connell, a forensic psychologist in Texas, said factors like the defendants' economic background, family environment, criminal history and other factors that do not take race into account are better predictors of the potential for future violence.

"There are studies that support the notion that characteristics such as race, age and sex may be useful predictors of future dangerousness. But as a society are we willing to consider things like a person's sex and race? I think that's what this case is about," she said.

Psychologist Ray Hayes, Quijano's friend of 20 years, said he does not think recent literature in the field encourages the use of race at all. He also said race should have little to do with the jury's determination of the appropriate sentence.

"I can't imagine in a capital sentencing hearing, how race can ever be a factor. The person either did it or didn't do it" regardless of his or her skin color, said Hayes, who also has a law degree and teaches medical law at the University of Texas medical school in Houston.

Hayes said Quijano did not use race out of discriminatory intent. In his view, the problem lies not in the prison statistics that his fellow psychologist used but in the reasons behind the statistics.

In Texas, of the 457 prisoners on death row, 36 percent are white, 40 percent black and 22 percent Hispanic. Of the 20 million people who live in Texas, 55 percent are white, 11 percent are black and 31 percent Hispanic.

So, in attempting to predict who is more likely to commit crime based on inmate numbers, it follows that blacks and Hispanics can be viewed as being more criminally prone, Hayes noted.

But some of the issues that are debated nationwide include: Are blacks and Hispanics arrested in greater numbers because the police target them more, as in the much-condemned practice of racial profiling? Are minorities led to crime in larger numbers because they are poorer than whites? Do they have the same opportunities for social advancement in the United States?

Hayes said the immediate effect of the controversy arising out of the Saldano case is that expert witnesses will not raise the race issue at all in Texas court. He added that race is rarely invoked as it is.

Hayes also predicted that Texas would soon find itself forced to reexamine the sentences of more inmates because of the high numbers of minorities waiting to be executed.

Using race is acceptable only if it thoroughly qualified and put in context, said Richard McGraw, president of the Texas Psychological Association.

He said predicting behavior based on statistics about past behaviors is a common practice; it is all about mathematical probability.

He used tan analogy from the auto insurance industry: Male drivers under 25 years of age normally are charged the highest premiums. Why? Because statistics show that males of that age group tend to be more aggressive drivers and tend to get into more accidents compared to the rest of the population.

Quijano said he always presents race in the context of other mitigating factors, as he did in Saldano. He said his trial testimony typically lasts four to five hours, of which only a couple of minutes focus on the race issue.

He said he presented 24 other factors such as Saldano's socioeconomic background (poor), employment (a laborer), family history, work environment, age (23 at the time of the killing), the crime levels in his neighborhood, the availability of weapons and victims, and so on.

Reaction from the Hispanic legal community

Gilbert M. Roman, deputy general counsel for the Hispanic National Bar Association, said the Texas attorney general's admission of error and the prospect of new sentencing hearings gives him hope that the state will refrain from deciding sentences based on the defendant's race, said

"These life or death decisions ... should absolutely be made on the merits of the case and not on the color of the person's skin or ethnicity or his last name," Roman said.

He praised Cornyn's decision as a positive step, saying, "I hope other states will look at their sentencing guidelines and practices."