On July 18, 2008, Gov. Rick Perry wrote a letter to U.S. Secretary of State Condoleezza Rice and to Attorney General Michael Mukasey, thanking the pair for their written request of the month before. Rice and Mukasey had asked that Texas comply with an International Court of Justice order, to ensure that Mexican nationals on death row in Texas were afforded the legal protections assured to them by a now roughly five-decade-old international treaty.
A 1963 Vienna Convention provision ensures individuals have access to home-country consular officials when detained or charged with a crime while abroad – a provision that not only protects foreign nationals in the U.S., but also protects U.S. citizens abroad. Mexico sued the U.S. over violations of the provision, and in 2004 won a judgment from the ICJ in the Hague that concluded the U.S. had not met that obligation in the case of 51 Mexican nationals sentenced to death in the U.S.
One such person was Edgar Tamayo, convicted in Texas for the 1994 murder of Houston Police Officer Guy Gaddis. Tamayo shot Gaddis from the backseat of a patrol car while Gaddis was transporting him to jail. Tamayo had been picked up for a robbery outside a Houston nightclub; Gaddis missed finding the handgun hidden in Tamayo's waistband after a brief frisk.
Although President George W. Bush then asked the states to give effect to the ICJ ruling, Texas' highest criminal court dismissed the notion that the state was bound by the decision, and a majority of the U.S. Supreme Court subsequently ruled that Congress would have to act to make the decision binding. Congressional action has not happened, and unless Perry – or perhaps a federal court – intervenes (possibly on a recommendation of the Texas Board of Pardons and Paroles) Tamayo will be executed on Jan. 22, without any court considering whether the failure of officials to inform him of his right to consular notification negatively impacted the outcome of his case.
In his 2008 letter to Bush Administration officials, Perry wrote that the consular notification protection is "highly important," and that the state has endeavored to have federal courts review the merits of any claim that a failure to honor it had prejudiced a case outcome. "I am further advised," Perry wrote, that if any inmate has not had that claim adjudicated and seeks such a review, the state would ask the court to address the "claim of prejudice on the merits. It is vital in each and every criminal case, especially those where the death penalty is a potential punishment, that justice be applied in a fair and impartial manner no matter what the citizenship of the individual may be."
Moreover, in addressing the question of whether the ICJ opinion should be applied to the states, Texas Attorney General Greg Abbott in court filings told the U.S. Supreme Court that all claims of prejudice would be considered, and that "if any individual should seek such review in a future federal habeas proceeding, the state of Texas will not only refrain from objecting [to that review], but will join the defense in asking the reviewing court to address the claim of prejudice on the merits."
Now, with Tamayo set to be the first inmate executed in Texas in 2014, Abbott has changed his tune, lawyers for Tamayo say. He's opposing Tamayo's bid to have the courts consider whether the failure to apprise him of his rights impacted his sentence. Perry and Abbott "promised that when individuals like ... Tamayo have not received judicial review of their consular rights violation, the state would advocate for such review in the federal courts," said Maurie Levin, an attorney for Tamayo, in a December press release. "In breach of those promises, Texas has opposed such review at every turn. As a result, no court has ever considered the substantial harm that resulted when Texas failed to advise ... Tamayo of his right to contact the Mexican consulate at the time of his arrest."
Levin and lawyer Sandra Babcock argue that had Tamayo been afforded access to consular officials upon his arrest, he never would have been sentenced to die. Tamayo suffers from brain damage and has an IQ of 67, below the threshold for mental retardation; the mentally retarded are constitutionally barred from execution. But neither of those facts were brought out during Tamayo's trial because he lacked effective assistance of counsel, his supporters argue.
Lauren Bean, Abbott's deputy communications director, declined in an email to comment on the allegation that Abbott has failed to deliver on his promise that the cases of the Mexican nationals would be reviewed, noting that the state has addressed Tamayo's situation in previous court filings. In 2009, the state argued that Tamayo's bid to have the question of prejudice reviewed had been procedurally defaulted. Tamayo, who barely spoke English at the time, was advised in Spanish of his rights in the U.S. – including the right to counsel and to remain silent. Tamayo instead waived his rights and confessed to the killing, the state noted. "Clearly Tamayo was advised he did not have to give a statement and could consult with a lawyer," reads the filing. "Therefore, it is unlikely that receiving notification of consular assistance would have made the slightest difference in Tamayo's decision to waive his right ... and confess." The state has also argued that Tamayo failed to raise the issue of his potential mental retardation in a timely fashion, and is thus "barred by the federal statute of limitation" from doing so.
In a letter to Levin and Babcock written Dec. 20, Adam Aston, Abbott's principal deputy solicitor general, said the state would not join the defense in a motion to the federal court urging that it devise a process for reviewing Tamayo's prejudice claim. In 2011, Aston wrote, the AG's office suggested that the 5th Circuit conduct a review to determine if there was prejudice, but Levin and Babcock refused. "The [AG] previously agreed, 'as an act of comity,' to join timely request for prejudice adjudications under the Vienna Convention," Aston wrote. "Our Office has adhered to that act of comity, and it was Mr. Tamayo who rejected it."
In a response, delivered to the AG's office Jan. 6, Levin and Babcock take exception to Aston's version of the facts, and note that the 5th Circuit would not be the proper venue for the requested review. "[T]he federal courts of appeal do not engage in fact-finding," Levin and Babcock wrote. "Instead, they rely on the facts as determined by the federal district court and state courts." In Tamayo's case, no such findings have ever been made.
And there is good reason to believe that had Mexican officials been involved in Tamayo's case from the beginning, he would have been sentenced to life, they argue, pointing to the case of Mexican national Juan Quintero, who was convicted in 2006 on charges of slaying a Houston cop, but who had a defense team – including investigators and experts – hired by Mexico.
As Tamayo's execution date draws near, his case has garnered attention from around the globe. U.S. Secretary of State John Kerry wrote separately to Abbott and Perry in September, urging them to intercede to delay the setting of an execution date in order to further consider the case. As a former prosecutor, Kerry wrote, he had no sympathy for a cop-killer, but a failure to honor international law "could impact the way American citizens are treated in other countries." That perspective was similarly expressed by the National Latino Evangelical Coalition. Failing to honor the ICJ ruling jeopardizes "the security of the thousands of Americans serving their Christian faith abroad," NaLEC President Gabriel Salguero said.
On Jan. 13, Tamayo filed a new suit in federal court seeking, in part, to force the BPP to reveal what information it will consider in making a decision on Tamayo's clemency. The BPP has yet to rule, and has declined to reveal what information it has before members. Moreover, the lawsuit alleges that board members have been in direct contact with the Harris County D.A. and HPD about the case, in violation of BPP rules designed to ensure "procedural fairness." Moreover, the suit notes that one BPP member, Romulo Chavez, a retired HPD officer and member of the officer's union, has yet to recuse himself from the case, also in violation of internal regulations. In all, the suit concludes, the BPP has "failed to provide a fundamentally fair clemency process."
Tamayo's execution, scheduled for Jan. 22, is one of eight already scheduled in Texas this year, through May. He would be the first executed this year, and the 509th inmate executed since reinstatement of the death penalty.
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