Amicus Curiae Brief — Victor Hugo Saldano, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefAug 15, 2019

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No. 19-5171

IN THE

Supreme Court of the United States

————

VICTOR HUGO SALDAÑO,

Petitioner,

LORI DAVIS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

————

On Petition for Writ of Certiorari to the

Court of Criminal Appeals of Texas

————

BRIEF FOR THE GOVERNMENT OF THE

REPUBLIC OF ARGENTINA AND OTHER

GOVERNMENTS OF THE AMERICAS AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

[Additional amici listed on inside cover]

————

PATRICK S. METZE

Professor of Law,

Director of Criminal

Defense Clinics

ALLISON CLAYTON

Director and Adjunct

Professor, Innocence

Clinic

TEXAS TECH UNIVERSITY

SCHOOL OF LAW

3311 18th Street

Lubbock, TX 79409-0004

(806) 742-4312

Patrick.Metze@ttu.edu

Allison.Clayton@ttu.edu

JONATHAN M. MILLER

Counsel of Record

SOUTHWESTERN LAW SCHOOL

3050 Wilshire Blvd.

Los Angeles, CA 90010-1106

(213) 738-6784

jmiller@swlaw.edu

Counsel for Amicus

August 15, 2019

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

Additional Amici Curiae

Dominican Republic

Oriental Republic of Uruguay

Plurinational State of Bolivia

Republic of Chile

Republic of Colombia

Republic of Ecuador

Republic of El Salvador

Republic of Guatemala

Republic of Honduras

Republic of Nicaragua

Republic of Paraguay

Republic of Peru

United Mexican States

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

STATEMENT OF INTEREST OF THE

GOVERNMENT OF THE ARGENTINE

REPUBLIC AND OTHER GOVERNMENTS IN

THE AMERICAS .................................................

I. INTRODUCTION .....................................

II. ARGUMENT .............................................

A. Texas Politics Infected the Texas

Court of Criminal Appeals in this

Case ......................................................

B. Texas Has Been Treating Petitioner

for Severe Mental Illness ....................

C. Petitioner’s Second Trial Did Not

Remedy the International Law Violations of the First Trial .........................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: Affidavit of Joe McLoughlin

(February 9, 2007) ..........................................

APPENDIX B: Affidavit of Deputy Consul

General Valeria M. Gonzalez Posse (October

19, 2009) .........................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Buck v. Davis,

137 S. Ct. 759 (2017) ................................. 8, 16

Estelle v. Smith,

451 U.S. 454 (1981) ...................................

Lagrone v. State of Texas,

942 S.W.2d 602 (Tex. Crim. App. 1997) ...

Saldano v. Davis,

701 Fed. Appx. 302 (5th Cir. 2017) ..........

Saldano v. Roach,

363 F.3d 545 (5th Cir. 2004) cert. denied

543 U.S. 820 (2004) ...................................

4, 9

Saldano v. State of Texas,

70 S.W. 3d 873 (Tex. Crim. App. 2002) ....

8, 9

Saldano v. State of Texas,

232 S.W.3d 77 (Tex. Crim. App.

2007) .............................................. 12, 13, 14, 15

Saldano v. Texas,

530 U.S. 1212 (2000) .................................

Saldano v. Texas,

No. 72,556 (Tex. Crim. App. Sept. 15,

1999) ..........................................................

U.S. CONSTITUTION

U.S. Const. amend. V ................................... 12, 13

U.S. Const. amend. VIII ...............................

STATUTES

18 U.S.C. § 2254(e) (2019) ...........................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Tex. Code Crim. Proc. art. 11.071, § 5(a)

(2019) ........................................................

Tex. Code Crim. Proc. art. 37.071,

§ (2)(b)(1) (2004) ........................................

4, 6

INTERNATIONAL DECISIONS

Chorzów Factory Case (F.R.G. v. Poland),

1928 Permanent Court of International

Justice (Ser. A) No. 17 (September 1928) .....

Saldaño v. United States, IACHR, Report

No. 24/17, Case 12.254 (March 18, 2017) ...... 20, 21

TREATIES AND OTHER INTERNATIONAL

INSTRUMENTS

American Declaration on the Rights and

Duties of Man (OAS, 1948) .......................

Charter of the Organization of American

States, April 30, 1948, 2 U.S.T. 2394, 119

U.N.T.S. 3 .................................................. 4, 19

International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S.

171 (entered into force Mar. 23, 1976) .... 3-4, 19

International Law Commission, Draft

articles on Responsibility of States for

Internationally Wrongful Acts, with

commentaries (2001) .................................

Universal Declaration of Human Rights,

G.A. Res. 217A (III), U.N. Doc. A/810

(1948) .........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

Vienna Convention on Consular Relations,

April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S.

261 .................................................................

OTHER AUTHORITIES

Cristina Aizpeolea, Saldaño se masturbó

frente al jurado, La Voz del Interior (Nov.

11, 2004), available at http://buscador.

lavoz.com.ar/2004/1112/sucesos/nota282

943_1.htm..................................................

Hugo Alconada Mon, Cómo pasa sus días el

único argentino condenado a muerte, La

Nación (Sept. 18, 2005), available at

https://www.lanacion.com.ar/sociedad/co

mo-pasa-sus-dias-el-unico-argentino-con

denado-a-muerte-nid739903.....................

Sol Amaya, La Historia de Víctor Saldaño,

el cordobés que lleva 23 años condenado a

muerte en EE.UU., La Nación (March 13,

2018), available at https://www.lanacion.

com.ar/sociedad/la-triste-historia-de-victo

r-saldano-el-cordobes-condenado-a-muert

e-en-eeuu-nid2116550 ...............................

Appeals Court Races Offer Voter Dilemma;

Republicans Must Make Runoff Decisions

for a Crazy Court of Criminal Appeals,

San Antonio Express-News (April 1, 2002),

available at 2002 WLNR 13894163 .........

Ian Brownlie, Principles of Public International Law (6th ed. 2003)..........................

TABLE OF AUTHORITIES—Continued

Page(s)

Bin Cheng, General Principles of Law as

Applied by International Courts and

Tribunals (1987) .......................................

Condenaron a muerte a Saldaño en fallo

unánime, La Nación (July 16, 1996),

available at https://www.lanacion.com.ar/

sociedad/condenaron-a-muerte-a-saldanoen-fallo-unanime-ni d172623 ....................

Victoria de Masi, Entrevista: Habla la madre

del primer argentino condenado a muerte

en los EE.UU., Clarín (June 8, 2019),

available at https://www.clarin.com/viva/

historia-madre-primer-argentino-conden

ado-muerte-ee-uu_0_uv_VCKPYa.html .....

Diane Jennings, AG, Court Dispute Still

Simmering, Dallas Morning News (April

14, 2002), available at 2002 WLNR

13698549 ...................................................

Natasha Niebieskikwiat, La comunidad

judía pidió a EE.UU. que ayude a capturar

a los iraníes, Clarín (February 8, 2007),

available at http://www.clarin.com/diario/

2007/02/08/elpais/p-00501.htm ................

Physicians Desk Reference, https://www.

pdr.net (last visited Aug. 11, 2019) ...........

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Dep’t of State, Secretary of State

Michael R. Pompeo and Argentine

Foreign Minister Jorge Faurie at a Press

Availability at the Western Hemisphere

Counterterrorism Ministerial Plenary

(July 19, 2019), available at https://www.

state.gov/secretary-of-state-michael-r-po

mpeo-and-argentine-foreign-minister-jor

ge-faurie-at-a-press-availability-at-the-w

estern-hemisphere-counterterrorism-mi

nisterial-plenary/ ......................................

Texas’ Worst Court Slaps Cornyn, Upholds

Nazi-like Quackery, San Antonio ExpressNews, (March 22, 2002), available at

2002 WLNR 1388602 ................................

Jim Yardley, Racial Bias Found in Six

More Capital Cases, N.Y. Times (June

11, 2000), available at https://www.ny

times.com/2000/06/11/us/racial-bias-foundin-six-more-capital-cases.html ...................

BRIEF FOR THE GOVERNMENT OF THE

REPUBLIC OF ARGENTINA AND OTHER

GOVERNMENTS OF THE AMERICAS

The Government of the Republic of Argentina

respectfully submits this brief as Amicus Curiae in

support of the Petition for a Writ of Certiorari of its

citizen, Victor Hugo Saldaño,1 and is joined by the

Governments of the Dominican Republic, the Oriental

Republic of Uruguay, the Plurinational State of Bolivia,

the Republic of Chile, the Republic of Colombia, the

Republic of Ecuador, the Republic of El Salvador, the

Republic of Guatemala, the Republic of Honduras, the

Republic of Nicaragua, the Republic of Paraguay, the

Republic of Peru and the United Mexican States.

Counsel of record for all parties received timely notice of the

intention to file this amicus brief and gave their consent. Counsel for

the Petition for Writ of Certiorari had no role in drafting this brief, in

whole or in part, and no person or entity other than the Government

of the Republic of Argentina made any monetary contribution toward

the preparation or submission of this brief. The Government of

Argentina has actively assisted Petitioner since shortly before his

first trial, in July 1996, including providing counsel with potential

evidence, obtaining counsel to work on the case pro bono for some

trial motions and appellate proceedings, sending observers to all

proceedings, and generally providing full consular services to

Petitioner, including monthly consular visits. Professor Jonathan M.

Miller, counsel of record on this amicus brief, assisted Petitioner’s

court-appointed counsel during pre-trial, trial and post-trial

proceedings at the request of the Argentine Government, was counsel

for oral argument before the Texas Court of Criminal Appeals, and

has generally assisted Mr. Saldaño’s Federal habeas counsel,

including on the Petition for Writ of Certiorari. Professor Miller’s

work in the case has been pro bono.

STATEMENT OF INTEREST OF

THE GOVERNMENT OF THE

ARGENTINE REPUBLIC AND OTHER

GOVERNMENTS IN THE AMERICAS

The Argentine government, like the government of

the United States, has an interest as a sovereign in

protecting the rights of its citizens when they travel

abroad.2 In pursuing this protection, the government

of Argentina seeks the fair and equal treatment of its

citizens by other governments and respect for their

fundamental human rights. Petitioner, Victor Hugo

Saldaño, is a citizen of Argentina. The government of

Argentina considers the treatment of Mr. Saldaño an

important bilateral issue and has raised the issue in

Cabinet-level discussions with the U.S. government.3

Public opinion in Argentina has also focused on the

Protection of nationals is a central consular function under the

Vienna Convention on Consular Relations, art. 5(a), April 24, 1963,

21 U.S.T. 77, 596 U.N.T.S. 261. See also art. 36(b) & (c) (providing

for consular assistance for imprisoned nationals).

See, e.g., U.S. Department of State, Secretary of State Michael R.

Pompeo and Argentine Foreign Minister Jorge Faurie at a Press

Availability at the Western Hemisphere Counterterrorism Ministerial

Plenary (July 19, 2019), available at https://www.state.gov/secre

tary-of-state-michael-r-pompeo-and-argentine-foreign-minister-jorgefaurie-at-a-press-availability-at-the-western-hemisphere-counterter

rorism-ministerial-plenary/ (the Argentine Foreign Minister noting

that the Saldaño case was raised during their meeting); Natasha

Niebieskikwiat, La comunidad judía pidió a EE.UU. que ayude a

capturar a los iraníes, Clarín (February 8, 2007), available at http://

www.clarin.com/diario/2007/02/08/elpais/p-00501.htm (noting the

case was discussed by U.S. Attorney General Alberto Gonzales

and Argentina’s Minister of Justice Alberto Iribarne during a

meeting held in Buenos Aires on February 7, 2007).

case, with hundreds of media references over the past

twenty-four years.4

The Governments of the Americas joining the

Argentine Republic as amici, and the Argentine

Republic, have a shared interest in assuring that

nations comply with their international obligations.

The Universal Declaration of Human Rights, G.A. Res.

217A (III), U.N. Doc. A/810 (1948); the International

Covenant on Civil and Political Rights, Dec. 19, 1966,

All of Argentina’s major newspapers have extensively covered

the case at all its stages. See, e.g., Sol Amaya, La Historia de

Víctor Saldaño, el cordobés que lleva 23 años condenado a muerte

en EE.UU., La Nación (March 13, 2018), available at https://

www.lanacion.com.ar/sociedad/la-triste-historia-de-victor-saldanoel-cordobes-condenado-a-muerte-en-eeuu-nid2116550 (offering an

overview of the case); Hugo Alconada Mon, Cómo pasa sus días

el único argentino condenado a muerte, La Nación (Sept. 18,

2005), available at https://www.lanacion.com.ar/sociedad/comopasa-sus-dias-el-unico-argentino-condenado-a-muerte-nid739903

(describing Mr. Saldaño’s years on death row and his mental

decline); Condenaron a muerte a Saldaño en fallo unánime, La

Nación (July 16, 1996), available at https://www.lanacion.com.

ar/sociedad/condenaron-a-muerte-a-saldano-en-fallo-unanime-ni

d172623 (describing the trial and death verdict); Cristina Aizpeolea,

Saldaño se masturbó frente al jurado, La Voz del Interior (Nov.

11, 2004), available at http://buscador.lavoz.com.ar/2004/1112/

sucesos/nota282943_1.htm (describing Mr. Saldaño’s bizarre

behavior at his second trial); Victoria de Masi, Entrevista: Habla

la madre del primer argentino condenado a muerte en los EE.UU.,

Clarín (June 8, 2019), available at https://www.clarin.com/viva/

historia-madre-primer-argentino-condenado-muerte-ee-uu_0_uv_VC

KPYa.html (extended interview with Mr. Saldaño’s mother and

description of the case).

999 U.N.T.S. 171 (entered into force Mar. 23, 1976);

customary international law, and the American

Declaration on the Rights and Duties of Man (OAS,

1948) as an enunciation of the “fundamental rights of

the individual” in the Charter of the Organization of

American States, art. 3(l), April 30, 1948, 2 U.S.T.

2394, 119 U.N.T.S. 3, all require nations to afford the

full protection of basic international human rights to

all persons within their territories, including foreign

nationals. These sources of international law likewise

require the United States to secure the right to a

fair trial, without discrimination based on race or

ethnicity. When such discrimination occurs, its effects

must be wiped out so that the prosecution does not

benefit from the State’s prior illegal conduct.

I. INTRODUCTION

The Argentine Government spent eight years

helping Petitioner get his racially-tainted sentence of

July 15, 1996 set aside. After multiple appeals by local

prosecutors, that decision was finally overturned in

2004, Saldaño v. Roach, 363 F.3d 545 (5th Cir. March

23, 2004) cert. denied, 543 U.S. 820 (Oct. 4, 2004). But

the taint was not cured. Texas is a State where the

Special Issue of future dangerousness, “whether there

is a probability that the defendant would commit criminal acts of violence that would constitute a continuing

threat to society,” Tex. Code Crim. Proc. art. 37.071,

§ 2(b)(1) (2004), is a required finding for imposition of

a death sentence. Argentine consular officials witnessed

Petitioner’s sharp psychiatric decline once Texas death

row was moved to the Polunsky Unit in early 2000.

Moreover, they anticipated problems at Petitioner’s

second trial. But the Argentine Government has been

unsuccessful in getting either the Texas or the Federal

courts to address the unfairness of a trial centered on

future dangerousness when the State, through its

extraordinary isolation of a death row inmate after a

racially-tainted proceeding, has made it impossible for

a jury to fairly evaluate the defendant.

Victor Saldaño’s death sentence has a procedural and

political history that has given it special importance to

the Argentine government and which offers important

background to the petition for certiorari. The Government of Argentina appreciates the rich constitutional

tradition of the U.S. legal system, which has often

served as the model for its own. However, the Texas

Court of Criminal Appeals has failed in its basic

obligations to Petitioner. The Texas Court was openly

hostile toward and mocking of Petitioner’s efforts to

have his constitutional claims heard because it was

openly upset that Petitioner ever had a new penalty

phase ordered to begin with. While it is important for

the U.S. Supreme Court to hear Petitioner’s case for

the reasons set forth in Petitioner’s Petition for Writ

of Certiorari, those arguments need to be understood

against the backdrop of how Texas has treated Petitioner’s case, and in light of the psychiatric decline and

medical treatment that Argentine consular officials

have witnessed and documented over the past twentyfour years.

II. ARGUMENT

There are three ways that the Argentine Government can provide the Court with useful additional

perspective. First, it is important for the Court to

understand precisely how and why the Texas Court of

Criminal Appeals, having been politically stung in its

earlier confrontation with Texas Attorney General John

Cornyn in Petitioner’s case, invented a procedural

default – an error that was only partially resolved by

the Fifth Circuit and that needs to be understood in

light of the history of the case. Second, the Argentine

Government, through its monthly consular visits and

regular monitoring of Mr. Saldaño’s medications, can

provide the Court with insight on Mr. Saldaño’s

mental decline. Third, the Argentine Government

and the nations of the Americas that have joined

Argentina on this brief, regard the treatment of Mr.

Saldaño to have violated international law.

A. Texas Politics Infected the Texas Court

of Criminal Appeals in This Case.

The Texas Court of Criminal Appeals invented a

procedural default on Mr. Saldaño’s central claim from

his second penalty proceeding in a ruling that

explicitly indicates the Court’s ire at Mr. Saldaño

having received a second penalty trial. The Fifth

Circuit recognized that this ruling was constitutionally improper; yet because the Fifth Circuit then failed

to properly apply the Supreme Court’s standard for

granting a certificate of appealability, Mr. Saldaño has

never received consideration of the most important

issue in his case.

As then Texas Attorney General John Cornyn would

ultimately recognize, the sentencing phase of Mr.

Saldaño’s first trial for capital murder, in July 1996,

was tainted by racist testimony. For imposition of a

death sentence, Texas law requires a jury finding of “a

probability that the defendant would commit future

criminal acts of violence that would constitute a continuing threat to society.” Tex. Code Crim. Proc. art.

37.071, § (2)(b)(1) (2004). In support of the State’s claim

of a “continuing threat,” Walter Quijano, the former

chief psychologist of the Texas Department of Criminal Justice, testified that being African American or

Latino is a factor that increases the likelihood that an

individual will commit future acts of violence, and

could be weighed as such by the jury in evaluating Mr.

Saldaño’s future dangerousness. State of Texas’s

Response to Petition for Writ of Certiorari at 4-5 (filed

May 4, 2000), Saldano v. Texas, 530 U.S. 1212 (2000)

(No. 99-8119). Mr. Saldaño’s court-appointed counsel

did not object; however, Argentine observers prevailed

upon counsel to appeal the issue. This appeal, while

rejected by the Texas Court of Criminal Appeals as

insufficiently fundamental to justify Mr. Saldaño’s

failure to object at trial,5 opened the door to a petition

for writ of certiorari on the issue by prominent counsel

secured through the efforts of the Argentine government. The Government of Argentina also filed an

amicus brief joined by twelve other Latin American

countries.6

These consular and defense efforts generated a legal

and political response in Texas. The Texas Attorney

General responded to the petition for writ of certiorari

with a confession of 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,” Response to Petition for Certiorari at 8,

and “seriously undermined the fairness, integrity, or

public reputation of the judicial process,” id. at 7. The

U.S. Supreme Court then vacated the judgement and

remanded the case to the Texas Court of Criminal

Appeals in light of the confession of error. Saldano v.

Texas, 530 U.S. 1212 (2000). Mr. Saldaño’s case also

led the Texas Attorney General to review other cases

Saldano v. Texas, No. 72,556 at 9-10 (Tex. Crim. App. Sept. 15,

1999) (en banc) (not designated for publication).

Brief of Amicus Curie the Government of the Republic of

Argentina and other Governments in Support of Petitioner Saldaño,

Saldano v. Texas, 530 U.S. 1212 (2000) (No. 99-8119).

in which Walter Quijano testified, and in turn to make

six other admissions of error.7 Most recently, the U.S.

Supreme Court overturned one of Dr. Quijano’s racetainted death sentences in Buck v. Davis, a decision

that recounts much of this history, 137 S. Ct. 759, 769770 (2017). Given the U.S. Supreme Court’s vacation

of the judgement and remand, rapid provision of a new

sentencing trial would have seemed the logical result.

The Texas Court of Criminal Appeals, however, then

refused to admit error in Mr. Saldaño’s case. Despite

the fact that the U.S. Supreme Court remanded the

case on June 5, 2000, a new penalty proceeding was

not held until November 2004. First, local prosecutors

challenged the Attorney General’s confession of error

as unauthorized and improper. Then the Texas Court

of Criminal Appeals ruled that while the Texas Attorney

General had the legal authority to represent the State

before the U.S. Supreme Court in Mr. Saldaño’s case,

Saldano v. State of Texas, 70 S.W.3d 873, 884 (Tex.

Crim. App. 2002), the confession of error was improper,

id. at 891. The Texas Court reached the startling conclusion that even if the prosecution presented testimony

“for the sole purpose of appealing to the potential

racial prejudices of the jury,” a defendant’s failure to

object would prevent him from raising that issue on

appeal. Id. at 889. Moreover, the Court held that no

hearing was required to determine whether defense

counsel’s failure to object constituted ineffective assistance of counsel. Id. at 886. Instead the Court found

that the lack of an objection was part of a deliberate

trial strategy by the defense, since defense counsel crossexamined the State’s expert on whether Argentines

Jim Yardley, Racial Bias Found in Six More Capital Cases,

N.Y. Times (June 11, 2000), available at https://www.nytimes.com/

2000/06/11/us/racial-bias-found-in-six-more-capital-cases.html.

are part of the same racial group as most U.S.

Hispanics, see id. at 885,8 and because the defendant’s

expert testified that being Black or Hispanic is not

what causes the criminal conduct, regardless of the

existence of a correlation, id. This decision, which

became an electoral issue and triggered a public spat

between the Texas Attorney General and the Court of

Criminal Appeals,9 was followed by an agreement

between Mr. Saldaño’s counsel and the Texas Attorney

General that if Mr. Saldaño filed a federal habeas

corpus action, the Attorney General would once again

confess error. That strategy ultimately worked, and

after further delays resulting from continuing attempts

by local prosecutors to intervene, habeas relief was

granted, Saldano v. Roach, 363 F.3d 545 (5th Cir.

2004) cert. denied 543 U.S. 820 (2004). But by the time

that finally happened, Mr. Saldaño was no longer fit

for trial on the issue of future dangerousness.

The Court of Criminal Appeals was likely alluding to a

troubling series of questions in which defense counsel noted that

most U.S. Hispanics have “mixtures in their blood lines of Spanish

people with Indians,” ROA.9394, and “a mixture of Indian and

Spanish blood from Mexico,” ROA.9395, presumably unlike an

Argentine.

As noted in the Petition for Writ of Certiorari at 5, Texas

Attorney General John Cornyn was running for the U.S. Senate,

three judges of the Texas Court of Criminal Appeals were up for

re-election, and the split between the Republican Attorney General

and the completely Republican Court drew substantial public

attention. Diane Jennings, AG, Court Dispute Still Simmering,

Dallas Morning News (April 14, 2002), available at 2002 WLNR

13698549; Appeals Court Races Offer Voter Dilemma; Republicans

Must Make Runoff Decisions for a Crazy Court of Criminal

Appeals, San Antonio Express-news (April 1, 2002), available at

2002 WLNR 13894163; see also Texas’ Worst Court Slaps Cornyn,

Upholds Nazi-like Quackery, San Antonio Express-News (March

22, 2002), available at 2002 WLNR 1388602.

The Argentine Consulate in Houston’s monthly visits

provided Mr. Saldaño with his primary link to the

outside world after his 1996 death sentence. Unfortunately, that meant the Consulate also witnessed Mr.

Saldaño’s severe mental decline across those many

visits. The stark deterioration began when Texas

dramatically altered its system of incarceration of

death row inmates in early 2000. This shift, which

established a regime of confinement in severe isolation,

provoked psychotic episodes and led to Mr. Saldaño’s

hospitalization for twenty weeks in the psychiatric

hospital of the Texas prison system, from March 20 to

August 3, 2001. Understandably, when a new penalty

trial approached in November 2004, the Consulate

and Victor Saldaño’s family were therefore extremely

anxious that the Texas courts consider whether Mr.

Saldaño was fit for trial. The Texas Court of Criminal

Appeals ultimately dealt with this issue as though

it held a grudge against Mr. Saldaño for having

frustrated its efforts to uphold his original death

sentence.

Prior to trial, the Argentine Government urged

defense counsel to bring Mr. Saldaño’s mental condition to the attention of the trial court even if his decline

did not reach the level of incompetency to stand trial.

It was the Argentine Government’s concern that led to

defense counsel’s motion that even if Mr. Saldaño

satisfied Texas competency requirements, he had suffered such severe decline in his mental faculties while

on death row that it was unconstitutional to subject

him to a new penalty proceeding in which the jury

would evaluate his apparent dangerousness. In practice, this motion was prescient, since at trial, while the

trial judge remarked that Mr. Saldaño was never

disruptive or unfriendly toward the court, ROA.5619,

the record also established that he appeared unfocused

on the proceedings, ROA.5098; ROA.5619; rocked in his

chair and laughed inappropriately, ROA.5645; insisted

on wearing prison clothes, ROA.4478; ROA.4506;

ROA.4563; ROA.4678; ROA.4758; ROA.4841; ROA.4946,

and masturbated under the table inside his jail uniform, ROA.5618-ROA.5619; ROA.5645. The trial

court also heard testimony from the bailiffs on Mr.

Saldaño’s behavior in court and discussed the matter

with Mr. Saldaño, ROA.5644-ROA.5648.

Mr. Saldaño’s pre-trial motion had two key arguments. First, he argued that as a matter of Due Process

and unconstitutional vagueness under the Eighth

Amendment, it was improper to subject him to a new

death penalty proceeding. Even if he was legally

competent, his mental decline from the severe

isolation of death row had severely diminished his

ability to assist in his own defense, made a principled

assessment for dangerousness by a jury impossible,

and increased the likelihood that the jury would perceive him as a future danger. ROA.4108-ROA.4113.

Second, he argued the related issue that because his

misconduct on death row was a product of confinement

in severe isolation, and his presence on death row was

a product of prior State misconduct at his original

trial, the State should be estopped from using evidence

of his misconduct on death row against him at trial to

prove future dangerousness. ROA.4114-ROA.4115.

The trial court then held a hearing on the motion on

November 5, 2004, at which the primary witness for

Mr. Saldaño was to be Dr. Orlando Peccora, the

psychiatrist whom as a Texas Department of Criminal

Justice employee had treated Mr. Saldaño during his

twenty-week stay in the psychiatric hospital in 2001.10

Dr. Peccora was identified and located through the Argentine

Consulate’s efforts.

Saldano v. State of Texas, 232 S.W.3d 77, 84-85 (Tex.

Crim. App. 2007).

The trial court never heard testimony on Mr. Saldaño’s

mental state, however, because on the day of the

hearing the State demanded the right to examine Mr.

Saldaño prior to any testimony by Dr. Peccora. The

trial court granted the State’s motion on the basis of

Lagrone v. State of Texas, 942 S.W.2d 602 (Tex. Crim.

App. 1997), a Texas decision that authorizes a mental

examination of a defendant by an expert for the State

before a defense expert who has examined the defendant may testify at trial, id. at 609-612. However, the

trial court refused to address Mr. Saldaño’s concern

about the extent of the Fifth Amendment waiver he

was being asked to make, since he was anxious that

evidence obtained by the State during a Lagrone

examination for pre-trial purposes not be used by the

State at trial. 232 S.W.2d at 85, 87. Mr. Saldaño then

declined to submit to the State’s examination, so the

trial court barred Dr. Peccora from testifying. Id. at 85.

After Mr. Saldaño masturbated at trial and was

placed in restraints, defense counsel renewed his earlier

motion, explicitly offering to subject Mr. Saldaño to a

mental examination by the State if the court guaranteed that it would only be used for rebuttal purposes,

and not at trial (where the State’s expert might argue

that Mr. Saldaño was dangerous or had other characteristics making the death penalty appropriate). Id.

at 86-87. The trial court, however, held that if the

State were permitted to conduct an examination, it

could use that examination not only to rebut Dr.

Peccora’s testimony before the trial judge (i.e., the

testimony that Mr. Saldaño’s mental decline made it

improper to subject him to a new penalty proceeding),

but also to testify before the jury “about anything

relevant to his mental state, including future dangerousness, which is the defense concern.” Id. at 87-88.

Mr. Saldaño was therefore forced to insist upon his

Fifth Amendment right that the examination not go

forward. Remarkably, the trial court never heard Mr.

Saldaño’s key witness on his mental decline as a result

of years of confinement in complete isolation on death

row – in a case where the defendant was both placed

in restraints as a consequence of having masturbated

in open court, yet found by the court not to have acted

in a disruptive or unfriendly fashion. See id. at 88.

On appeal, the Texas Court of Criminal Appeals

focused more on the earlier political history of the case

than on the issues before it concerning Mr. Saldaño’s

second penalty proceeding. The issue of the racist

1996 testimony was res judicata, but the Court’s 2007

opinion begins: “In 1996, appellant was convicted of

capital murder and sentenced to death. The conviction

was upheld, but the death sentence was overturned in

federal habeas proceedings based on a procedurally

defaulted claim of prosecutorial misconduct at

appellant’s 1996 trial.” Id. at 82 (emphasis added).

The opinion then makes no fewer than five further

references to “the procedurally defaulted claim of prosecutorial misconduct” at the 1996 trial, even altering

three quotations from the record of the 2004 proceeding to insert the words “procedurally defaulted claim”

into the defense counsel’s mouth.11 Then, perhaps in

The Court of Criminal Appeals’ decision offered the following

“quotation” from the transcript:

[THE DEFENSE]: Now, in legal terms, the way this

fits in is, the State should not be able to enjoy the fruits

of [the procedurally defaulted claim of prosecutorial misconduct at appellant’s 1996 trial] that it

committed eight and one-half years ago.

an attempt to achieve poetic justice, the Court of

Criminal Appeals ruled that Mr. Saldaño had “procedurally defaulted” his Points of Error that he should

not have been forced to undergo an expert examination

by the State that could be used for any purpose

whatsoever as a condition for presenting his constituAnd if the Court finds that [appellant] has suffered a

decline in his cognitive abilities and emotional stability—

and, your Honor, it doesn’t require a finding on our

part that he is psychotic, we’re not arguing he’s not

competent to stand trial; we’re only arguing a significant decline in cognitive ability and emotional stability.

If that’s the case, our argument is he may no longer

be tried. The State committed [the procedurally

defaulted claim of prosecutorial misconduct at

appellant’s 1996 trial] by putting him on death row,

they caused him to be diminished as a result of many

years in isolation there, and they can’t enjoy the fruits

of [*85] that at the new sentencing proceeding today.

And, in fact, he can’t even be evaluated fairly as a

future danger because he’s not just the same person

today, and the statute requires an evaluation of future

dangerousness as of the time of trial.

Second, on the issue of whether [appellant] would have

committed aggressive acts while incarcerated if not for

the isolation that he was subjected to, the question is

whether the State can present evidence of his misconduct on death row on the issue of future dangerousness.

And our position is that the State committed the

primary illegality here [with the procedurally defaulted

claim of prosecutorial misconduct at appellant’s

1996 trial].

If the State can show by a preponderance of the

evidence that the defendant’s misconduct on death row

would have occurred anyway, then we have nothing to

complain about.

232 S.W.3d at 84-85 (emphasis added, bracketed words from

original).

tional claims. Id. at 88. According to the Court of

Criminal Appeals, Mr. Saldaño had procedurally

defaulted even though he had explained to the trial

court that he could not allow an examination to go

forward if it could be used for more than pre-trial

purposes by the State, and even though during trial

Mr. Saldaño renewed his motion in writing and

indicated that he would allow an examination if the

trial court would guarantee that it not be used by the

State for more than rebutting the defendant’s evidence

on mental decline. The Court of Criminal Appeals

held that Mr. Saldaño from the start should have

offered to allow an examination in return for a

“guarantee” that it not be used for other purposes, and

that when Mr. Saldaño made such an offer during trial

(after bizarre courtroom behavior), it was simply too

late. Id. The Court of Criminal Appeals never

explained why the renewed motion in response to Mr.

Saldaño’s courtroom conduct was too late,12 the trial

court never indicated that it regarded the offer as too

late – it simply indicated that legally it could not

provide the requested guarantee, id. at 87-88 – and the

State never argued procedural default in its briefs.13

The Court of Criminal Appeals also never explains why a

defendant must ask the trial court to guarantee that his examination for pre-trial will not be used for more than rebuttal purposes

by the State. In the competency area, the U.S. Supreme Court

has indicated that the trial court should take the initiative to

guarantee limited use of a State-sponsored competency exam

once the problem is brought to its attention. Estelle v. Smith, 451

U.S. 454, 468-469 (1981).

Oddly, only five of the nine judges of the Texas Court of

Criminal Appeals joined in the opinion finding procedural

default. The other four judges merely concurred in the judgement

without explanation. 232 S.W.3d at 109.

In Federal habeas corpus, the Fifth Circuit seems to

have rejected the Texas Court of Criminal Appeals’

finding of procedural default. The panel noted that the

trial court “may have erred” when it told the defense

that submitting to an exam by the State to support its

pre-trial motion would have opened up the issue of Mr.

Saldano’s mental state for the trial stage. Saldano v.

Davis, 701 Fed. Appx. 302, 309-310 (5th Cir. 2017).

Moreover, the Fifth Circuit seems to accept that

Mr. Saldaño suffered severe mental decline while in

isolation on death row, since it takes the position that

Dr. Peccora’s testimony “was not absolutely critical to

Saldaño’s motion,” id. at 310. But then, with almost

no reasoning, the Fifth Circuit failed to grant a

Certificate of Appealability on the issues that the

Argentine Consulate has been trying to get some court

to fully consider since the 2004 pre-trial motion.

A significant Constitutional claim in a death penalty

case deserves full consideration by some court of the

U.S. judicial system. To get to the point where Petitioner’s original pre-trial arguments might get heard,

Petitioner’s attorneys first had to overcome an unconstitutional ruling by the trial court, and then had to

overcome a ruling of procedural default that the Texas

Court of Criminal Appeals wrote because it was openly

upset that Mr. Saldaño’s first death sentence was ever

set aside. That does not leave a lot of room for analysis

of the underlying issue of the unconstitutionality of

the Texas future dangerousness special issue applied

to Mr. Saldaño given his psychiatric decline on death

row and offers a prime example of issues jurists could

conclude “deserve encouragement to proceed further,”

Buck v. Davis, 137 S. Ct. at 773.

The U.S. legal system assumes a level of good faith

by State high courts, and Federal habeas corpus ordi-

narily assumes that those courts deserve respect and

confidence. But sometimes troubling exceptions emerge.

A majority of the Texas Court of Criminal Appeals in

2007 could not put its earlier political embarrassment

behind it, and as a result, the racial bias of 1996 truly

remained unremedied. Not only is there a serious

concern when severe isolation leaves an individual

diminished in his ability to defend himself, but there

is a separate concern when an appellate court, stung

by earlier accusations of racism, openly shows that it

cannot evaluate a defendant’s legal questions on a

clean slate.

B. Texas Has Been Treating Petitioner for

Severe Mental Illness.

Given that since mid-2006 Mr. Saldaño has regularly

received strong anti-psychotic medications prescribed

by Texas Department of Criminal Justice psychiatrists, presumably the State of Texas agrees that at

least since that time Mr. Saldaño has been severely

mentally ill. Mr. Saldaño’s mental decline prior to his

November 2004 trial is documented in the record by

affidavits by consular officials.

The Argentine Consulate in Houston has regularly

requested and received Mr. Saldaño’s prison medical

and disciplinary records. Until 2006, approximately

two years after his second penalty trial, Mr. Saldaño

only received very limited medication. During a period

of approximately four months, starting in mid-2001,

he received the anti-psychotic medication Haldol,14

All descriptions of the medical effects of medications are

taken from www.pdr.net, which incorporates the information from

the Physicians Desk Reference. While the Argentine Government

would have preferred that information on Mr. Saldaño’s medication since mid-2006 be part of the record, it took some time for

and was also treated with the anti-depressant Zoloft,

which was later switched to Silenor, and given Benadryl.

By November 2001, he was no longer taking these

medications, and the only additional medication that

appears in his medical records before 2006 is during

the period from August 2004 through late 2004, while

in the Collin County Jail, when he was proscribed

Trazodone, an antidepressant also used for insomnia,

with no anti-psychotic qualities. Trazodone is the only

medication that he received during his 2004 trial.

Since 2006, Mr. Saldaño has had three major hospitalizations in Jester IV, the psychiatric hospital of

the Texas prison system (from May 19 to August 17,

2006; from September 25, 2007 until January 4, 2008;

and from January 8, 2009 until April 22, 2009). As

a result of examinations during his 2006 and 2007

hospitalization, Mr. Saldaño has received large doses

of the anti-psychotic medication Haldol almost without

interruption since 2006, with oral dosage typically of

10 mg. twice a day, with an additional intramuscular

dose of 100 to 200 mg of Haldol Decanoate every four

weeks, and with Cogentin prescribed for side effects.

In addition, he has often received the anti-depressant

Celexa (citalopram), and received lithium, a mood

stabilizer, during portions of 2009 and 2010.

Mr. Saldaño’s prison disciplinary record has improved

radically since consistent medication began in 2006

and 2007. Mr. Saldaño’s disciplinary conduct deteriorated enormously with his transfer to the isolation of

the new pattern of medications to become clear to the Consulate

and it is not clear that a mechanism exists through which Federal

habeas counsel could have supplemented the record under 18

U.S.C. § 2254(e) (2019) or Tex. Code Crim. Proc. art. 11.071, § 5(a)

(2019) to add information on recent medication administered by

the State.

the Polunsky Unit in March 2000, which gave rise to

extensive testimony by death row prison guards at his

2004 penalty proceedings. ROA.5716-ROA.5747. 2007

was the first year in which Mr. Saldaño did not have a

single major disciplinary incident, and disciplinary

incidents are dramatically lower at all times post-2006

compared to the 2001 through 2005 period.

The Argentine Consulate in Houston submitted two

affidavits as part of Mr. Saldaño’s habeas corpus

petition, one by a permanent employee of the Consulate,

Joe McLaughlin, ROA.219, attached as Appendix A,

and one by Deputy Consul General Valeria Gonzalez

Posse, ROA.282, attached as Appendix B, based on her

personal observations and the notes of visits kept in

the Consulate’s records. It does not require special

expertise to see from Mr. Saldaño’s consular visits,

medication and disciplinary record that regardless of

whether he was competent at his 2004 trial, at least in

recent years the Texas prison system has treated him

as someone suffering from serious mental illness, and

that there is a strong correlation between that illness

and the isolation of the Polunsky unit.

C. Petitioner’s Second Trial Did Not Remedy

the International Law Violations of the

First Trial.

Race discrimination violates International Law, see

International Covenant on Civil and Political Rights,

art. 2(1), and when a State engages in a serious

violation of a defendant’s human rights, international

law requires elimination of the effects of the violation.

The Inter-American Commission on Human Rights,

an international human rights body created by the

Charter of the Organization of American States to promote the observance and protection of human rights in

the Americas, OAS Charter, art. 106, has accordingly

recommended commutation of Petitioner’s death

sentence. Saldaño v. United States, IACHR, Report

No. 24/17, Case 12.254 (March 18, 2017).

International tribunals have long held that “reparation must, as far as possible, wipe out all the

consequences of the illegal act.” Chorzów Factory

Case (F.R.G. v. Poland), 1928 Permanent Court of

International Justice (Ser. A) No. 17, at 47 (September

1928). That principle, combined with the concept of

nullus commodum capere de sua injuria propria (no

one can be allowed to take advantage of his own

wrong) constitutes a basic International Law rule,

Bin Cheng, General Principles of Law as Applied by

International Courts and Tribunals 149 (1987); see

also Ian Brownlie, Principles of Public International

Law 487 (6th ed. 2003) (explaining that “no benefit

can be received from an illegal act”). International

remedies include the rescinding of judicial measures

unlawfully adopted with respect to the person of

a foreigner. Int’l Law Comm’n, Draft articles on

Responsibility of States for Internationally Wrongful

Acts, with commentaries art. 35, commentary 5 (2001).

The Inter-American Commission on Human Rights

has addressed Mr. Saldaño’s case after a Petition in

which the Government of Argentina participated as

amicus curiae. Its extensive report on the merits concludes by recommending commutation of Petitioner’s

sentence as the only possible solution given his mental

decline from so many years in isolation. In particular,

the Commission noted that the State’s responsibility

is to preserve the mental health of those in its custody

“rather than using the existence of mental healthrelated symptoms as a justification for proving future

risk in order to obtain the imposition of the harshest

possible penalty.” Saldaño v. United States, IACHR,

Report No. 24/17. Particularly in a context where

“Víctor Saldaño’s presence on death row was the result

of a trial in which racist criteria played a part,” id. at

¶221, the impact of his time spent on death row could

not become the basis for imposing the death penalty,

id. at ¶223. In a letter to the Argentine Foreign

Minister, The Honorable Jorge Marcelo Faurie, dated

August 15, 2019, the Commission explicitly acknowledges that this brief reflects the determinations and

conclusions of its Report.

International Law barred Texas prosecutors from

receiving any advantage from the racially-biased 1996

proceeding. A new penalty proceeding when the

defendant has suffered severe mental degradation as

a result of eight years on Death Row is an inadequate

remedy, especially when the jury that examines the

very scary-looking, oddly acting defendant needs to

determine if he represents a future danger. No legal

system can claim that such a proceeding cures the

defects of the original sentence. And the Texas Court

of Criminal Appeals failed to correct the errors of the

trial court. Hostile towards the Petitioner because of

the embarrassment it suffered from its earlier decisions against the Petitioner, it breached its responsibility

to fairly consider the Petitioner’s claims.

CONCLUSION

This Court should grant review of Victor Saldaño’s

case and reverse the failure of the Fifth Circuit to

grant a Certificate of Appealability.

Respectfully submitted,

PATRICK S. METZE

Professor of Law,

Director of Criminal

Defense Clinics

ALLISON CLAYTON

Director and Adjunct

Professor, Innocence

Clinic

TEXAS TECH UNIVERSITY

SCHOOL OF LAW

3311 18th Street

Lubbock, TX 79409-0004

(806) 742-4312

Patrick.Metze@ttu.edu

Allison.Clayton@ttu.edu

JONATHAN M. MILLER

Counsel of Record

SOUTHWESTERN LAW SCHOOL

3050 Wilshire Blvd.

Los Angeles, CA 90010-1106

(213) 738-6784

jmiller@swlaw.edu

Counsel for Amicus

August 15, 2019

APPENDIX

APPENDIX A

AFFIDAVIT OF JOE MCLOUGHLIN

ROA.219

AFFIDAVIT

The undersigned, Joe MacLoughlin, employee of the

Consulate General of Argentina in Houston, hereby

states:

That in my position as employee of the Consulate

General of Argentina in Houston, and following specific

instruction by my superiors, I have made numerous

visits to Argentine citizen Victor Hugo SALDAÑO since

the last two months of 1999 until the middle of 2006,

both in the state penitentiaries of Ellis Unit in Huntsville

as well as at the Allan B. Polunksy Unit in Livingston,

Texas. Also, while he has held at the Jester IV psychiatric unit in Richmond, Texas, when hospitalized

for psychiatric treatment.

During the visits made between the last two months

of 1999 and the end of 2000, Saldaño showed absolutely no signs of mental deterioration, presenting instead

a normal behavior, great enthusiasm in the many

subjects of conversation that came up, as well as

clarity and coherence in his thinking. It should be

noted that during this period the undersigned visited

Mr. Saldaño twice to three times per month – sometimes accompanied by an Argentine Consular Official

and sometimes alone – which allowed for a close

appraisal of his physical condition and his mental

stability.

However, since the beginning of the year 2001,

some thought disorders and irrational speech begin

to appear during the visits at the Polunsky Unit.

Statements such as that the Penitentiary authorities

were training him to became chief warden or that the

wardens were not human but machines made by a

computer high above the Unit, inside an extraterrestrial

ship, were relatively common during my conversations

with Mr. Saldaño.

Then, in March 2001, the first crisis struck. He apparently tried to commit suicide and was transferred for

proper medical treatment to the TDCJ Jester IV

Psychiatric Unit in Richmond, Texas.

In said location, the undersigned visited Mr. Saldaño

on several occasions during which signs of mental

illness and apparent psychotic behavior became evident.

After several months of medical treatment and

medication his condition improved noticeably and was

transferred back to the Polunsky Unit.

However, since that first crisis, Mr. Saldaño’s

mental problems never ceased to appear, including an

apparent self-destructive attitude that caused him to

at least partially refused nourishment, with an evident

and substantial loose of weight, as well as showing

signs of increasing mental disorders.

In the beginning of 2003 and later around the

middle of 2006 he was again hospitalized in the Jester

IV Unit with severe mental disorders, showing an

intensification in his mental deterioration.

The undersigned does not recall at present having

been in personal contact with Mr. Saldaño since approximately May of 2006, while he was still hospitalized.

Date: February 09, 2007

Signed: Joe MacLoughlin

Consulate of Argentina in Houston

[Notarized]

APPENDIX B

AFFIDAVIT OF DEPUTY CONSUL GENERAL

VALERIA M. GONZALEZ POSSE

ROA.282

Declaration of the Physical and

Mental Decline of the Argentine

Citizen Mr. Víctor Hugo Saldaño on Death Row

1 This declaration is written by Valeria M. González

Posse, Deputy Consul General of the Consulate of

Argentina in Houston, temporarily in charge of the

same, on the basis of official documents of this General

Consulate, including notes and communications of

the visits made to Mr. Víctor Hugo Saldaño between

the beginning of 1996 and August of 2009. Further, it

includes personal observations made by the following

persons:

Mr. Ricardo Gauthier – Consul General

Mr. José MacLoughlin – Consular Employee

Mr. Marcelo Mesa – Consular Employee

Mr. Horacio Wamba – Consul General

Mr. Alejandro Meroniuc – Assistant Consul General

Mr. Facundo Vila – Deputy Consul General

Mr. Gustavo Garcia – Deputy Consul General

Mr. Armando Alvarez – Consular Agent

Mr. Enrique Pareja – Consul General a.i.

Mr. Gustavo Terrera – Assistant Consul General

Mr. Juan Miguel Cassissa – Consul General

Mr. Juan Jose Garibaldi – Consul General

Ms. Valeria M. Gonzalez Posse – Deputy Consul General

2. In addition, videos of the police interrogations

that this Consulate General has in its possession,

medical reports received from medical personnel, and

transcripts of the trial were used as a basis.

3. The personnel of the Argentine Consulate in

Houston has been in contact and has visited Víctor

Hugo Saldaño since it became aware of his detention

in 1995. The intervention of the Consulate started on

December 26, 1995, when it received notice from the

court-appointed defense attorney, Mr. David Haynes,

communicating the detention of Argentine citizen

Víctor Saldaño in the city of McKinney, Texas.

4. Over this period, changes have been observed in

the physical and mental state of Víctor Saldaño that

have culminated in a profound deterioration of his

person and a marked mental decline, as a consequence

of his time on Death Row.

5. The consular visits took place in:

-the jail of Plano County, Texas

-the prison of Ellis Unit in Huntsville, Texas

-the Allan B. Polunsky Unit in Livingston, Texas

(formerly called Terrell Unit)

-Jester IV Psychiatric Hospital, in Richmond, Texas

6. During the frequent visits made by personnel of

the Consulate during the first years of his detention,

Mr. Saldaño’s attitude was determined, he sought to

cooperate in his defense, he urged the Consulate to

find him better legal representation and he requested

assistance to stay in touch with his family and to

acquire foods and personal hygiene articles in the

store at the prison. Although he suffered some emotional ups and downs (he considered ending the

appeals process on two occasions), he actively sought

to be incorporated into a work program inside the

prison (Ellis Unit) that would keep him occupied.

During this period, the correspondence with the

Consulate is abundant. Also, the Consular notes of the

visits do not have further observations, since the

central matter is his legal defense. Similarly, the

video of the police interrogation at the moment of his

detention, as well as the transcript of his first trial

indicate that they develop without abnormal behaviors or outbursts on behalf of Mr. Saldaño.

7. Víctor Saldaño was sentenced to death on July

15, 1996, and transferred on September 18, 1996 from

the jail in Plano, Texas, to the Ellis Unit in Huntsville,

Texas. Based on consular visits and conversations

that took place with Víctor Saldaño at that time, it

becomes evident that although the Ellis Unit presented a setting stricter than the County Prison,

because it was maximum security, Mr. Saldaño’s new

place of detention allowed prisoners some social contact

and recreation, including making telephone calls and

access to religious services. In their cells, they could

have a radio and they had access to television, magazines obtained by mail, and books.

8. The authorities of Texas decided to build a new

center, the Polunsky Prison Unit, and to move all the

“Death Row” prisoners there, starting in late 1999,

near the city of Livingston, Texas. The Polunsky Unit

was formerly known under the name of Terrell Unit.

Mr. Saldaño was transferred to said institution on

March 1, 2000.

9. On the consular visits the drastic change of

regime in the new prison was noted. In said unit, no

possibility exists of any type of physical contact or

communication between the prisoners. It consists of a

regime of total isolation. The prisoners’ cells measure

5.4 square meters (60 square feet, 6 feet long by 10 feet

wide), including the space occupied by the cot, sink,

and built-in toilet. The cell has a solid door, which

increases its isolation.

10. The “recreation” – which is individual and, as

explained by the authorities to this Consulate, is

defined as “leaving his cell” – takes place in accordance

with the availability of the officials and at the times

convenient to them. Normally, the so-called recreation

consists of being escorted to a small inside patio surrounded by cement walls and covered by a roof, where

the prisoner is in total isolation.

11. During the visits made by consular officials from

1996 to approximately the end of 2000, Mr. Saldaño

was not presenting any type of evident mental deterioration, showing, on the contrary, normal behavior,

participating with enthusiasm in the numerous topics

that interested him, such as history, arms, airplanes,

his travels around the continent, and other diverse

subjects. He always demonstrated coherence and clarity

in his thoughts. He frequently discussed affairs of

international politics and at times demonstrated fairly

accurate knowledge of events that occurred in the last

World Wars or regional wars.

12. He showed great interest in things of daily life

outside of the prison and he remembered matters

related to the relatives of the people that visited him.

He also maintained frequent and normal correspondence with the officials of the Argentine Consulate and

with his relatives in Córdoba, his native province in

Argentina.

13. In the notes corresponding to his June 22, 1996

visit to the jail in Plano, Deputy Consul Mr. Facundo

Vila indicates: “Mr. Saldaño was absolutely calm and

surprisingly cheerful during the entire course of the

interview.”

14. On August 30, 1996, the notes of Consul General

Mr. Juan Luis Garibaldi state the following: “On this

date [Mr.] Saldaño communicated by telephone, as he

does normally, and expressed being comfortable in his

new cell [in Plano, Texas] that he does not share with

anybody, where he even has a television, which makes

it possible to distract himself.”

15. On September 18, 1996, Mr. Víctor Saldaño is

transferred to the maximum security prison of Huntsville

(Ellis Unit).

16. On February 13, 1997, the Deputy Consul Mr.

Facundo Vila comments in a letter to Ms. Lidia Guerrero,

Mr. Saldaño’s mother: “Two weeks ago, I went to visit

Víctor at the Huntsville prison, where I had a meeting

that lasted approximately three hours, during which

we talked about a series of subjects, the majority of

them obviously connected to his future prospects, as

well as to the conditions he is presently in.” “In

general terms, I found him to be quite well, with great

strength of mind and an intelligent attitude as to how

he should handle himself in an environment like the

one he is in presently.”

17. On August 15, 1998, it is recorded in the notes

of Deputy Consul Mr. Facundo Vila’s visit that: “Mr.

Saldaño showed in general terms good physical condition, and an alert and active disposition. He conversed

animatedly, without any apparent symptoms of depression being detected at any time.”

18. In notes from September 4, 1998, referring to a

letter by Víctor Saldaño dated August 17, 1998, to the

Consulate, Consul General Mr. Juan Miguel Cassissa

indicates: “Mr. Saldaño insists in various parts of his

letter about the urgency that they get him a good

attorney, . . . Mr. Saldaño also expresses that he will

send a list of attorneys to this Consulate, comprised of

professionals who have had an important record with

regard to death penalty cases.” According to notes of

an official the letter denotes an “. . . attitude of greater

hope and willingness to fight.”

19. The September 7, 1998 notes of Deputy Consul

Mr. Facundo Vila about a letter received from Mr.

Víctor Saldaño indicate that he requests to be transferred to a less violent wing inside the Huntsville prison,

since for Mr. Saldaño: “. . . the terrible conditions

imposed on the life of an inmate in Huntsville, particularly the area he is presently in, and which to a certain

extent is psychologically affecting him with the high

number, as he states, of people with serious mental

imbalances. In that sense [Mr. Saldaño] requests that

steps be taken . . . to transfer him to wings where there

would be inmates that are less aggressive and without

serious psychological problems.”

20. The September 19, 1998 notes of Deputy Consul

Mr. Facundo Vila’s visit with reference to Mr. Saldaño

indicate: “. . . his priorities consist of trying to improve

his living conditions inside the prison.”

21. On October 20, 1998, the notes of the visit to

Víctor Saldaño made by Deputy Consul Mr. Facundo

Vila and Ms. Lidia Guerrero (Mr. Saldaño’s mother),

evidenced finding him in “ . . . an excellent state of

health and in good spirits generally.”

22. On October 10, 1998, with respect to the visit of

Mr. Saldaño’s mother, Ms. Lidia Guerrero, according

to notes of Deputy Consul Mr. Facundo Vila: “Once the

visit was over Ms. Guerrero commented that, although

she found her son in a fairly good general state of

health, she observed certain attitudes and comments

that worried her with regard to his mental balance.”

23. The notes of the May 10, 1999 visit of Deputy

Consul Mr. Facundo Vila express that: “On this

occasion, a good part of the conversation centered

around Argentina, the country he had left more than

ten years ago, with him inquiring about the most

important changes that had occurred in different

areas since his absence.”

24. There is a record that visits were made to Mr.

Saldaño regularly between three and four times a month

during the first years, and sometimes two officials of

the Consulate went on those visits that commonly

lasted around two hours, which allowed evaluation of

his physical conditions and mental stability.

25. His high level of participation continues to be

evident in the notes of December 28, 1999, corresponding to the visit of Consul General Mr. Horacio Wamba:

“Víctor Saldaño insisted during my visit this past

Wednesday 22, that the only way to save his life was

to prevent the court from designating “motu proprio”

a new court-appointed attorney that, like the previous

one, would exercise an inefficient defense.”

26. On March 1, 2000, Mr. Víctor Saldaño is transferred to the Polunsky Unit.

27. The mental state of Mr. Saldaño changed radically since the beginning of 2001, in which some

symptoms of mental disorder started becoming evident

in his attitudes, as well as in his conversations, which

would turn from normal one moment, to irrational the

next.

28. Mr. José MacLoughlin – employee of the

Consulate that visited Mr. Saldaño weekly during this

period – expressed that the change in Víctor Saldaño

was quite abrupt and that the prison regime, along

with the extreme isolation, affected him enormously,

generating a marked change in attitude.

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29. Upon carrying out a reconstruction of the

correspondence, however, after the first trimester of

the year 2000, growing incoherencies are detected in

the abundant correspondence that Mr. Saldaño maintains with the Consulate, which initially was attributed

to fluctuations in his state of mind.

30. Comments by Víctor Saldaño obtained by Mr.

José MacLoughlin during his weekly visits over the

course of the first trimester of 2001, such as that some

authorities of the prison were training him to become

a warden or that the guards that circulated around

were not human beings, but extraterrestrial humanoids from a spaceship that was suspended over the

prison, turned into common expressions that were

gradually appearing with more frequency and greater

emphasis.

31. A request for a consular visit to Víctor Saldaño

is denied verbally and then in writing, on February 6,

2001 by a note from the Texas Department of Criminal

Justice, informing the Consulate that Víctor Saldaño

would be incommunicado for an indefinite time and

that he will not be able to receive visits. This is

reflected in Deputy Consul Mr. Gustavo García’s notes

of the same date, and is in violation of Article 36 of the

Vienna Convention on Consular Relations.

32. On February 12, 2001, notes of the visit made

by Consul General Mr. Horacio Wamba to Víctor

Saldaño indicate: “. . . I found Víctor Saldaño in a state

of extreme deterioration physically and mentally.

Saldaño has lost more than twenty kilograms and he

expresses to me that he is the object of discriminatory

mistreatment by the prison guards.”

33. Later, in March of 2001, the first clear evidence

of a mental crisis appeared. Due to a suicide attempt,

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Mr. Saldaño was transferred on March 20, 2001 to a

Psychiatric Hospital of the penitentiary system,

known as TDCJ Jester IV Psychiatric Unit, located in

Richmond, Texas.

34. Notes from the March 23, 2001 visit of Consul

General Mr. Horacio Wamba: “As a result of intensive

efforts, I was able to visit him. Notwithstanding the

permission given, I faced a lot of impediments from the

Warden and the Director of the Hospital . . . the prison

authorities ended up giving in and I was able to see

Víctor Saldaño. I found him to be seriously deteriorated. Also incoherent. He would only repeat “It is

impossible to go against them and they will kill you

too.” Saldaño had a laceration from the jugular area

to the cervical vertebrae. I asked him what it was due

to. He said that he preferred to commit suicide rather

than be a victim of a cruel or underhanded death.”

35. Mr. Víctor Saldaño’s suicide attempt arises within

the framework of an intensification of “disciplinary”

actions, which include the prohibition of receiving

visits, the elimination of recreation, not permitting

access to the prison’s store (which implies not being

able to have elements of hygiene and other foods) and

the limitation to a diet restricted to only cold foods,

usually a peanut butter sandwich.

36. In conversations they had with officials of the

Consulate, the prison authorities recognized a possible

psychiatric cause to Mr. Saldaño’s condition, but they

did not provide medical assistance, and the extreme

isolation resulted in Mr. Saldaño’s suicide attempt.

After the suicide attempt, Mr. Saldaño was finally

transferred on March 20, 2001 to the psychiatric

hospital mentioned above for his evaluation. He was

hospitalized in that institution until the month of

August of the same year.

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37. Notes of Consul General Mr. Horacio Wamba of

the interview he had on April 14, 2001 with Carl

Reynolds and Gary Johnson (authorities of TDCJ) and

with the Attorney General of Texas, John Cornyn

state:

“. . . they gave a broad and detailed

explanation about Víctor Saldaño’s behavior

[in the] prison, in order to justify different

sanctions that he received ‘not as a consequence of discrimination but as a result of his

own misconduct . . .’ [even when] the possibility of a psychiatric explanation . . . was present.”

38. Notes from the same date indicate: “Péccora

(psychiatric doctor of Jester IV Psychiatric Hospital)

confirmed to me the worsening of the mental illness of

Víctor Saldaño, who he attends to almost daily . . .

[Mr.] Saldaño refuses to receive visits, he does not

accept medication either, and lately he does not want

to leave his cell.”

39. The notes of the Consul General Mr. Horacio

Wamba of the April 12, 2001 visit indicate: “Saldaño

insists that he does not have any more strength to

continue living.”

40. Dr. Orlando Péccora, psychiatric doctor and

employee of the penitentiary system of Texas, expresses

to Consul General Mr. Horacio Wamba, – recorded in

notes of April 16, 2001-that Víctor Saldaño “shows

symptoms of paranoid psychosis . . . but that it was

still premature to make a definitive diagnosis.”

41. During the first hospitalization of Mr. Saldaño

in the Psychiatric Hospital – from March to August of

2001 – officials of the Consulate visited him numerous

times from the first day of his transfer until he finished his treatment. During these visits his condition

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of total disconnection with reality appeared more

evident than ever.

42. After finishing his first treatment at the

Psychiatric Hospital, he was returned to his usual cell

at the Livingston Prison. Nevertheless, the Consular

officials have observed that since that first crisis his

mental problems never stopped being present and

they led him to a clearly self-destructive attitude,

where he refused to maintain the most minimal and

elemental hygiene and even refused to ingest foods.

43. This situation became evident to the consular

employees and officials in the physical conditions of

Mr. Saldaño, with a considerable loss in weight, and

an emaciated and neglected appearance due to his

meager nutrition and lack of hygiene.

44. In addition, on numerous occasions over the course

of 2002 and 2003, according to Mr. José MacLoughlin,

the consular visits needed to be abruptly interrupted

due to Mr. Saldaño’s irrational behavior. On one

occasion, as he maintained a normal conversation, he

interrupted it to announce that he had the intention

to urinate and defecate in a brown paper bag that

contained foods. On another occasion, the visit was

interrupted because he was showing signs of wanting

to masturbate. Numerous and similar episodes, of

which there is no exact record of the date, abound

during this period.

45. Since then the terrible mental state of Mr.

Víctor Saldaño forced the prison authorities to rehospitalize him at the Psychiatric Hospital on nine occasions,

demonstrating clear signs of intense mental deterioration.

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HOSPITALIZATIONS AT THE JESTER IV

PSYCHIATRIC HOSPITAL

Admission to Jester IV

03-20-2001

03-03-2003

12-23-2004

04-06-2005

05-18-2006

01-29-2007

09-25-2007

03-20-2008

01-08-2009

Return to Polunsky

08-03-2001

03-18-2003

01-19-2005

04-13-2005

08-17-2006

02-02-2007

01-04-2008

04-07-2008

04-22-2009

46. Víctor Saldaño’s initial death sentence was

annulled by order of the Fifth Circuit on March 23,

2004 and it led to the institution of a new jury trial –

penalty phase – during the months of October and

November of 2004.

47. According to declarations of Consul General

Mr. Ricardo Gauthier, who closely followed his second

proceeding, Mr. Saldaño had a series of unusual and

inexplicable behaviors such as refusing to take off his

overalls (prison clothing) to attend the trial in a more

presentable manner. He looked at the ceiling, he

smiled for no reason, and he moved his lips without

emitting sounds. On one occasion he stood up for no

reason, having to be restrained by police officers in the

courtroom. On another occasion he masturbated

inside his prisoner overalls in front of the jury. He

refused to have an interpreter at his side during part

of the trial and only at the end of the trial, after the

verdict, he asked if there was going to be a verdict, and

the interpreter had to – per the judge’s instructions –

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explain that the verdict had already been read, since

Mr. Saldaño had not realized that he had been

sentenced to death.

48. The scarce correspondence with the Consular

officials and his family during this period is likewise

incoherent to the point of being unintelligible. For

example, in a July 27, 2004 letter addressed to friends

in Córdoba, after pointing out that he awaits a new

trial, he incorporates incoherent and unrelated

phrases such as:

“Cloroformo, potasuis chloride (sic), sulfuric

acid, la chapa no paga en Tejas, me dicen en

Tejas nacido en Zacatecas, yo saco los autos

de la basura, lo que dicen Yonkers, Ives Saint

Thomas, el hijo del diablo,” etc.

These incoherencies continue over several pages of

the same letter.

49. In a letter addressed to the Consulate from July

19, 2004, Mr. Víctor Saldaño inludes phrases such as

the following: “está a disposición mi coche y las llaves,

el coche es un Peugeot 404 de la basura lo recogí en el

cementerio de la basura en Buenos Aires, los Yonkers,

party-wrecks-repuestos.

50. The notes from October 22, 2004 of Consul

General Mr. Ricardo Gauthier indicate: “In the presence of the Judge hearing the case, Saldaño unexpectedly

took a photo[graph] from the ones that his family

had sent [to be presented as evidence], destroying it

completely.”

51. The notes corresponding to November 10, 2004

of Consul General Mr. Ricardo Gauthier indicate that

at the of the start of the trial, “upon trying to masturbate in front of the assistants, Víctor Saldaño had to

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quickly be handcuffed by the police officers that were

guarding him in the Court.”

52. The notes of November 16, 2004 of Consul

General Mr. Ricardo Gauthier express: “The defense

attorney announced . . . that . . . he had decided not to

present the testimony of Ms. Lidia Guerrero as a witness, arguing that, after thorough conversations with

her, he had determined that she maintains [the need

to] . . . demand a psychiatric evaluation [for her son].”

53. It is evidenced in the same notes: “Meanwhile,

Víctor Saldaño unfortunately continues to externalize

uncontrollable and indecent attitudes before the Court.

The authorities had to handcuff him once again yesterday when faced with a new attempt of masturbation.”

54. After the proceeding ended, Mr. Saldaño’s behavior continued to be erratic.

55. A few days before finishing a new hospitalization at the Psychiatric Hospital, Minister Mr. Enrique

Pareja’s notes of his February 2, 2005 visit reflect that:

“Saldaño showed himself to be scattered, distracted

and making fantastical statements about his life in

prison . . . he said that his slimness was due to the

“poison” that they always put in the prison food, which

he identified as “sulfuric acid.”

56. In 2006, Mr. Saldaño suffers a new breakdown

and is hospitalized again at the Psychiatric Hospital

from May 18 to August 17 of 2006. The following is a

segment of the notes taken during the visit of May 23,

2006 by the undersigned:

“He is considerably incoherent. At times he

tries to put together a phrase that ends in a

way that is confusing and disjointed from the

topic that is being discussed. He seems to

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have difficulty understanding very simple

phrases and it is necessary to repeat a question to him in different ways to get him to

understand. At times he becomes absent

from the conversation, looking absentmindedly at any object, moving his lips without

emitting any sound. Later he seems to come

to, to ask for, for example, a subscription to a

newspaper of his particular preference.”

57. In notes of the same date taken by the

undersigned it is recorded that: “ . . . authorities of

Jester IV (Officer Bragas Jr.) indicated that he was

transferred [to the psychiatric hospital] due to his

evident deterioration apparent in his state of total

introversion and absence from all surrounding reality,

plus the complete neglect of hygiene habits.”

58. Although on a subsequent visit of the undersigned the appearance of Mr. Saldaño seemed to be

improving – as evidenced in the note of June 9, 2006 –

Warden Kevin Estep informed the undersigned that

they found him in the middle of a psychotic outbreak,

having painted his body with feces and written on the

walls with feces. On that occasion, “the psychiatric

doctor, Dr. Cire Jane de León indicated that [Mr.]

Saldaño had been found under his cot in a state of

profound terror and they needed to give him a substance (gas) to be able to tranquilize him. She indicated

that the deterioration was evident and that he

would be medicated by force, since his behavior was

unpredictable.” She added that the diagnosis was

schizophrenia, since his behavior of hearing voices,

smiling in an irrational manner and moving his lips in

an intermittent way without emitting any sound, were

signs of this disorder.

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59. This occasion is the first time that the prison

authorities recognize Mr. Saldaño’s mental illness in

front of Consulate officials. This same conduct had

already been made evident during his second trial in

McKinney, Texas.

60. Starting with Víctor Saldaño’s fifth hospitalization at Jester IV Psychiatric Hospital, which took

place in May of 2006, the medical authorities issued a

diagnosis of Víctor Saldaño’s mental illness as schizoaffective disorder. Since then he has suffered numerous

ups and downs and the shortage of beds at the psychiatric hospital has forced him to spend most of his time

in his small cell on death row, from where he rarely

comes out.

61. Even though Mr. Saldaño seems to respond

more quickly to medication after the last periods of

care at the Psychiatric Hospital, he continues with

serious episodes:

62. In October of 2007 a new suicide attempt, where

he tried to hang himself using the bed sheet, sent him

to the Psychiatric Hospital again, where the diagnosis

of schizophrenia was reconfirmed. This is the second

hospitalization in the same year and will extend to

January of 2008. According to the report of Dr.

Kimberly Samuel, a doctor of the Texas penitentiary

system, Víctor Saldaño suffers from a paranoid type of

schizophrenia, he hears voices that incite him to kill

himself and he sees monsters that do not let him sleep.

His therapist, Mrs. Gwendolyn Bundi MA, LPC, SP,

also treats him for an episode of severe depression

with psychotic elements.

63. After several months of stability in which Mr.

Saldaño’s cooperation with authorities stands out, in

March of 2008 he manifested fear that they would

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make an attempt on his life, for which he is returned

to the Psychiatric Hospital as suicide threat.

64. Back in the prison and according to the undersigned’s notes of her September 26, 2008 visit to Mr.

Víctor Saldaño, and an exchange that took place with

the Warden of the unit on the same date, Víctor Saldaño

had gone weeks without bathing and despite complaining of intense cold he refuses to wear any clothes.

65. The notes corresponding to the November 19,

2008 visit, indicate: “Saldaño removed his clothing,

urinated and defecated en the small cubicle for visiting

and proceeded to sit down naked to continue to talk

with the Consulate official.” This behavior was

reported by the undersigned to the prison authorities

and medical personnel who, after carrying out an

evaluation in the Polunsky Unit, indicated to this

Consulate that Mr. Saldaño was well.

66. However, within a short time he needs to be

transferred again to the Psychiatric Hospital where he

would stay for almost four months (January 8, 2009 to

April 22, 2009). According to the undersigned’s notes

of conversations she had with his therapist and the

medical report received, Mr. Saldaño fears being

poisoned and he only eats a little bit of white bread.

The medical reports that cover the period of January

and February of 2009 indicate that he has episodes in

which he eats his excrement and/ or covers his body

with it, that with certain persistence he wishes to put

an end to his life and that he hears voices that tell him

to hurt himself. On various occasions during such a

lapse, he needed to be placed in the isolation unit of

the hospital to guarantee his safety.

67. On subsequent visits he was noted to be

incoherent and disoriented and with trembling in his

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hands, which was a result of the numerous antipsychotic medications that were being administered to him.

68. The medical report of January 7, 2009 - electronically signed by the health professionals of the

Psychiatric Hospital, John Christian, BS, LBSW,

MHL, and by Julia Roy, LMA, SP – indicates:

“the cell presented total disorder, with feces

everywhere; the patient also eats his feces . . .

His overalls and skin (hands, face) had feces

smeared everywhere.”

69. Numerous subsequent medical reports reiterate

this behavior and add that he also ingests feces with

the bread.

70. The Officials of the Argentine Consulate

continue with a system of regular visits and when he

is hospitalized at the Psychiatric Hospital, weekly

visits, and on average no less than twenty visits per

year. The physical and mental deterioration of Víctor

Saldaño as a result of his time on death row, as it has

been evidenced by the weekly visits and medical

documentation, is such that he seems like a different

person in comparison to his first years on death row.

Signed by:

Valeria M. Gonzalez Posse

Deputy Consul General

Houston, October 19th, 2009

[Notarized]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.