HOUSTON (MCT) – Secretary of State John F. Kerry and a former Texas governor are part of an international coalition trying to halt Texas' execution of a Mexican citizen this week.
Edgar Tamayo Arias, 46, is to be put to death Wednesday for fatally shooting Houston Police Officer Guy Gaddis in 1994.
Gaddis, 24, had been flagged down near a nightclub by a man who accused Tamayo of robbing him. The officer arrested Tamayo, handcuffed him and put him in the back seat of his patrol car. He was driving away when Tamayo drew a concealed pistol and shot Gaddis three times in the back of the head.
On Tuesday, a federal judge in Austin rejected Tamayo's request for an order that would have prevented Gov. Rick Perry and the parole board from considering his clemency petition until the fairness of the state's clemency process could be reviewed. The judge found that the clemency process satisfied constitutional requirements and did not violate Tamayo's right to due process of law.
Tamayo's attorneys vowed to keep fighting.
"The Texas clemency process is the weakest in the nation, in the state that executes the most. Allowing Mr. Tamayo's fate to be decided by a board that has refused to provide meaningful consideration of evidence that Mr. Tamayo has mental retardation and that his trial was fundamentally unfair as a result of the violation of his consular rights is an affront to what clemency is supposed to be," the attorneys said in a statement.
They have petitioned Perry to grant a 30-day reprieve and the parole board to commute Tamayo's death sentence to life in prison.
Tamayo, a laborer from Morelos state, Mexico, was in the U.S. illegally at the time of his arrest. Advocates say he was not informed of his right to diplomatic assistance under an international treaty known as the Vienna Convention on Consular Relations.
In an interview televised in Mexico on Tuesday, the governor of Morelos decried the "arrogance" and "racism" of Texas' legal system and said the Tamayo case "violated a fundamental principle, which is consular assistance."
Graco Ramirez, a member of Mexico's Democratic Revolution Party, or PRD, said that although he didn't know whether Tamayo was guilty, "what is certain is that due process wasn't given, and when such due process isn't granted as a judicial principle, clearly there's no certainty about what's being judged."
The United Nations International Court of Justice, also known as the World Court, ordered the U.S. 10 years ago to reconsider the convictions of 51 Mexicans, including Tamayo, who had been sent to death row without being told of their consular rights. Two of the 51 have since been executed, both in Texas.
In 2005, President George W. Bush ordered Texas and other states to review the 51 convictions. But Texas' then-solicitor general, Ted Cruz, now a senator, persuaded the U.S. Supreme Court to rule that the president had no authority to order state courts to defer to the World Court.
The 32 states with capital punishment have executed 28 foreign nationals since 1976, according to the Washington-based Death Penalty Information Center, which opposes the practice.
"Mexico typically intervenes in these cases, capital cases, even before the trials occur so they often don't result in a death sentence anymore. It might well have made a difference in Tamayo's case," said the center's executive director, Richard Dieter.
Mexican officials have petitioned the U.S. on Tamayo's behalf, including Foreign Secretary Jose Antonio Meade and Ambassador to the U.S. Eduardo Medina Mora.
Last week, Mark White, a former Texas governor and state attorney general, joined the effort.
"I personally support capital punishment. But this case is not about whether we support or oppose the death penalty. It's about fairness and having the courts hear all the key facts. In Tamayo's case, a court review could have made a real difference," White, a Democrat, wrote in the Austin American-Statesman.
Kerry has urged Texas to reconsider.
"I have no reason to doubt the facts of Mr. Tamayo's conviction, and as a former prosecutor, I have no sympathy for anyone who would murder a police officer," he wrote in September, adding that he was concerned that Texas' handling of the case could affect the way Americans are treated overseas.
Kerry shared a letter he received from Medina Mora. "This issue has become and could continue to be a significant irritant in the relations between our two countries," the ambassador wrote.
Perry and other Texas officials argue that they are not bound by the World Court's decision. Perry spokeswoman Lucy Nashed reiterated that position this week.
"It doesn't matter where you're from – if you commit a despicable crime like this in Texas, you are subject to our state laws, including a fair trial by jury and the ultimate penalty," Nashed said.
Tamayo's attorneys insist that without consular assistance, he did not receive a fair trial.
Tamayo came to the United States as an adolescent, spoke little English, was developmentally disabled, brain-damaged and mentally ill, said one of his attorneys, Sandra Babcock.
"He's just the type of person the protections of the Vienna Convention were designed to help," said Babcock, clinical director of the Center for International Human Rights at Northwestern University School of Law.
Tamayo's execution would be the first this year in Texas, which last year put 16 prisoners to death.
It's unclear whether new lethal-injection drugs could also become a factor in Tamayo's case.
The drugs drew scrutiny last week after witnesses reported that condemned Ohio prisoner Dennis McGuire took more than 15 minutes to die, appearing to gasp and snort after he was injected with midazolam, a sedative, and hydromorphone, a painkiller similar to morphine. Ohio and other states have started using new drugs because of shortages, the result of manufacturers facing protests restricting supplies.
Rather than switch drugs as Ohio did, Texas and other states have turned to compounding pharmacies, which make drugs without federal scrutiny.
Texas, which has executed 508 prisoners since lethal injections began in 1982 _ more than any other state – started using a compounding pharmacy last year to renew its supply of pentobarbital, an anesthetic.
Tamayo's attorneys asked prison officials what drugs would be used in his execution, since a lawsuit filed over the state's use of the compounded drug revealed they had also obtained supplies of the drugs used in Ohio.
Jason Clark, a spokesman for the Texas Department of Criminal Justice, said they planned to use compounded pentobarbital to execute Tamayo, and declined to comment about other drugs they have.