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Death Watch: Hearing in Tamayo Clemency Case

Judge will consider whether Texas process is fair

By Jordan Smith, 3:40PM, Mon. Jan. 20

Death Watch: Hearing in Tamayo Clemency Case
Illustration by Jason Stout

Federal Judge Lee Yeakel has agreed to hear arguments in a case brought by condemned inmate Edgar Tamayo who is seeking a temporary restraining order – and a stay of his imminent execution – barring the state from acting on his bid for clemency until it can demonstrate that the clemency process is in fact fair and constitutionally sound.

Tamayo, a Mexican national, was tried and sentenced to die for the 1994 killing of Houston Police Officer Guy Gaddis. Upon his arrest Tamayo was not told of his right to contact Mexican consular officials. This is no small issue, in part because Mexico does not employ the death penalty and has shown interest in providing legal counsel to its citizens tried for capital crimes in the U.S. Indeed, Mexico sued the U.S. in the International Court of Justice in the Hague and in 2004 won a ruling that would require the U.S. to review the cases of 51 Mexican nationals, including Tamayo, who had been convicted without being told of their right, under the 1963 Vienna Convention, to contact home-country officials. To date, Tamayo's claim that the outcome of his case was impacted by the denial of that right has yet to be reviewed by any court.

With Tamayo's execution scheduled for Wednesday evening, lawyers Maurie Levin and Sandra Babcock, have also applied with the Board of Pardons and Paroles seeking clemency – a recommendation that Tamayo's sentence be commuted to life behind bars, in part because of the denial of consular access. The BPP, which is empowered only to make a clemency recommendation to Gov. Rick Perry, has not yet acted in the case.

But in a lawsuit filed Jan. 13, Levin and Babcock argue that the BPP has failed to follow procedures designed to ensure a fair clemency process, including a rule that would forbid board members from communicating with any one party without first notifying all parties to a case. In their suit, the lawyers say they believe the BPP has violated that rule by communicating with the Houston PD and Harris County prosecutors about Tamayo's case and that they intend to use the biased information to rule on the merits of Tamayo's clemency request.

In its response, filed Jan. 15, the state argues that the federal court has very limited jurisdiction over questions of clemency, and that Yeakel may not issue a stay of execution in the case.

Yeakel will hear arguments in the case Tuesday morning.

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