FOR IMMEDIATE RELEASE - JUNE 25, 2000 BUSH'S NEXT DILEMMA: WILL TEXAS CARRY OUT A DEATH SENTENCE WHERE RACE WAS OFFERED AS EVIDENCE OF "FUTURE DANGEROUSNESS"? Jessy Carlos San Miguel is scheduled to be put to death on June 29, 2000 for his role in the 1991 robbery of a Taco Bell restaurant in Irving, Texas in which four people were killed. In the wake of the recent United States Supreme Court action in the case of Victor Hugo Saldaño, Mr. San Miguel has filed a Petition in the District Court of Dallas County, Texas, asking the court to vacate his death sentence on the grounds that his death sentence was based in part of his Mexican heritage. In Texas a defendant cannot be sentenced to death unless the jury finds that he would be a danger in the future. At Mr. San Miguel's sentencing trial, his own lawyer blamed his violent and aggressive behavior as a teenager on his Mexican ethnicity. Also, the prosecutor appealed to the jury's prejudice and fear of illegal immigrants from Mexico. On June 5, 2000, the United States Supreme Court granted certiorari and vacated the 1991 death sentence of Victor Hugo Saldaño, of Collins County, remanded his case to the Texas Court of Criminal Appeals, his death sentence because Dr. Walter Quijano, a clinical psychlogist testified for the state that the risk that person will commit acts of of violence is greater for black and hispanic prisoners. Dr. Quijano based his testimony that on evidence that blacks and Hispanics are over-represented in the criminal justice system. In pleadings filed with the United States Supreme Court, the State of Texas "confessed error, acknowledging that, "the infusion of race as a factor for the jury to weigh in making its determination violated [Saldaño's] constitutional right to be sentenced without regard to the color of his skin." On behalf of the State of Texas, the Attorney General said that "[b]ecause the use of race in Saldaño's sentencing seriously undermined the fairness, integrity, or public reputation of the judicial process, Texas confesses error and agrees that Saldaño is entitled to a new sentencing hearing." The Attorney General explained that importance of a racially unbiased judicial process is so great that the State will not hide behind procedural technicalities and that the death sentence should be reversed even though Saldaon's lawyer did not object to the testimony and there was other evidence to support the death sentence. In addition to Saldaño, the State has identified six other cases in Dr. Quijano gave similar testimony. The State has indicated that it will not oppose requests for similar relief in those cases should those litigants seek to supplement their pending applications for review. Without qualification, the Attorney General noted that "it is inappropriate to allow race to be considered as a factor in our criminal justice system." Although Dr. Quijano did not testify in Mr. San Miguel's trial, race was considered as a factor in determining "future dangerousness," so that Mr. San Miguel should be included in the group of cases being re-considered. Like the jury that sentenced Victor Saldaño to death, the San Miguel jury was impermissibly allowed and encouraged to consider race as a factor in sentencing San Miguel to death. During Mr. San Miguel's trial racist stereotypes of "macho" Mexican-Americans who "cross that border...and commit crimes" were invoked by both the defense counsel and the prosecutor. The petition filed last week on behalf of Mr. San Miguel charges that these overtly racist statements encouraged jurors to consider race in sentencing. At the time of the offense for which he was sentenced to death, Jessy San Miguel was only 19 years old. As early as junior high, Jessy was involved in frequent altercations with other students. Jessy's family background, his long term exposure to domestic violence and history of childhood abuse potentially provided an individualized, mitigating explanation for this behavior. However, when the state introduced testimony concerning Mr. San Miguel's combative attitude and his fights with other students during junior high and high school, defense counsel characterized them as merely a product of Mr. San Miguel's Mexican-American heritage. Mr. San Miguel is scheduled to be executed on the twenty-eighth anniversary of the release of the United States Supreme Court's opinion in Furman v. Georgia, 408 U.S. 238 (1972) which called a temporary halt to the imposition of the death penalty in the United States until procedures could be put in place to insure that the ultimate punishment was administered fairly and without regard to arbitrary factors such as race. Should the Texas Court of Criminal Appeals refuse to stop Mr. San Miguel's execution, he calls upon Mr. Bush and Mr. Cornyn to confess error as they did in Mr. Saldaño's case, and agree to a new sentencing hearing free from racial bias. A petition for clemency is pending before the Governor and the Board of Pardons and Paroles. Excerpts from the transcript of Mr. San Miguels trial are attached. A copy of the petition filed on habeas of Mr. San Miguel can be obtain from his attorneys. FOR INFORMATION: Danalynn Recer 636 Baronne St. New Orleans, LA 70113 Tel. (504)558-9867 Fax (504) 558-0378 Mobile (504)319-6553 Mandy Welch Burr and Welch 1630 Castle Court, Suite A Houston, TX 77002 Tel. (713) 523-2299 Fax. (713) 523-3833 Counsel for Mr. San Miguel EXCERPTS FROM JESSY SAN MIGUEL'S TRIAL Defense counsel asked the following questions of one witness: Q: Whether or not you think Mr. San Miguel was cocky -- I mean, cocky is just a state of mind, right? A: It's an attitude, I believe. Q: Right. A lot of young people display that as sort of a defensive mechanism to hide anxiety or fear, don't they? A: Uh-huh. Q: You've experienced that with this man and many other young people, haven't you? A: Yes. Q: It's particularly true in the Mexican-American people, that they don't like to display or openly display fear or trepidation; isn't that true? A: I couldn't answer that. Q. That's -- that's the term "macho". Isn't that what that's all about? A: If that's the word you would like to use, I guess so. Of another witness, defense counsel asked the following serious of questions: Q: Jessy - the bottom line is, Jessy was a small kid who was not particularly handsome or popular, but who wouldn't take anything off of bigger kids and would defend himself. That's the truth of the matter; isn't it? A: I don't know. Q: Jessy never beat up anybody smaller than him, did he? A: No. Q: In fact, most of the people that he had problems with were larger than him, weren't they? A: Yes, sir. Q: Jessy had a certain macho mentality about him, didn't he? A: Yes, sir. Q: That he had -- had his own pride and he was not going to let people larger than him, richer than him or more popular than him run him down or put him down; wouldn't you say that was his attitude? A: Yes, sir. Q: Would you say that his macho mentality is a very commonplace thing in the Mexican-American community among the men, Mexican- American men, whom you've known? A: Yes, sir. Yes, sir. Q: It's something that's just part of the culture, isn't it? A: Yes, sir. Q: And it is something that a smaller man will display more openly than a larger man, isn't it? A: Yes, sir. .......... Q: Do you find that that's also part of the Mexican-American culture, that the men act very protective of their perceived female companions or their relationships? In other words, they're pushy and macho about their relationships with the women? A: I would suppose so. I'm not schooled in the Mexican-American culture. Adam Alvarez, a high school friend, testified for the State about numerous fights involving Mr. San Miguel when they was in high school together. Mr. Alvarez agreed that the fights he testified about were "fair fights," and he agreed with defense counsel's characterization that "there was nothing really unusual or out of line about the amount of fighting that Jessy did, except for the fact that Jessy just didn't let people push him around or make him look like a chicken." Having essentially neutralized the seriousness of the evidence against his client, counsel nonetheless pressed ahead with his racial stereotype: Q: Wasn't that the typical situation? A: That's what I said. Q: A couple of guys, just jawing at each other, trying to see who was the more macho of the two, right? A: Right Q: Being macho and not letting people push you around is kind of -- is part of the Mexican-American culture, isn't it? A: Yeah. Q: That's why most young Mexican-American start at 15 growing a little mustache, right? A: Right. Q: You wouldn't shave your mustache off, would you? A: No. Q: For any amount of money? A: No Q: Why not? A: Why not? Q: Yeah. A: I'm just not used to looking that way. Q: It's a cultural thing, isn't it? It's a thing you take pride in. It's a sign of manhood, isn't it? A: Oh, yeah. Q: Okay. If someone were just to say -- well, come up to you and say, 'Adam, I think you'd look better without that mustache. You ought to shave it,' you wouldn't even consider it would you? A: No. Q: Tell the folks on the jury here, what does it mean when a young man he's macho -- a young Mexican-American man, what does macho mean? A: What does macho mean? Q: Uh-huh. A: Beats me. Q: Pardon? A: Beats me. Q: You don't know what it means? A: Macho. Q: I mean, to you macho means -- A: Tough. Q: Macho means I'm not afraid of people? A: Tough. Q: I'll stand up for my rights? A: Right. Q: Isn't that right? I'm a stand-up guy? A: Yes. Q: That's all it means, isn't it? A: Yeah. Q: Is it also part of the Mexican-American culture among young men in their late teens or early 20_s to take care of their women? A: Yes. Q: A young Mexican-American man does not let anyone insult or belittle his woman, does he? A: No. Q: If that happens, it's time to start fighting, right? A: Yeah. Q: That's an immediate fight? A: Right. Q: Or if you imagine that someone's trying to take your woman away from you, that's also a good reason for an immediate fight, isn't it? A: Right. Q: That's not Jessy and you. That's most all young Mexican-American men, isn't it? A: Yeah. Q: That's just life, isn't it? A: Yeah. By injecting these stereotypes into the trial as an explanation for Mr. San Miguel's aggressive behavior and combative attitude, defense counsel encouraged the jury to conclude that Mr. San Miguel had a propensity for violence because of his ethnicity. Instead of humanizing Mr. San Miguel and individualizing his experiences in a way that would evoke understanding and compassion for the extraordinary pain he suffered as an abused child, this stereotyping of him by his own lawyer amounted to a virtual concession of the future dangerousness special issue and fit in perfectly with the anti-Mexican theme the prosecutor had already established in his argument to the jury. Argument by Prosecutor: That commercial that Taco Bell has, that on the border stuff, I want you think about that on the border. This is the line. I want you to think about the border. On this side of the border is all the law abiding citizens. 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