In an op-ed in the Austin American-Statesman, for­mer Texas Governor Mark White called for a new hear­ing for Edgar Tamayo, a Mexican nation­al sched­uled for exe­cu­tion on January 22. Foreign nation­als charged with crimes in the U.S. are enti­tled to assis­tance from their con­sulate under the Vienna Convention on Consular Relations, but Tamayo was denied that right. White joins U.S. Secretary of State John Kerry and the Mexican Foreign Minister in call­ing for hear­ings to deter­mine whether assis­tance from the Mexican gov­ern­ment would have affect­ed Tamayo’s case. White high­light­ed the impor­tance of uphold­ing the Vienna Convention, say­ing, ​“If American states, includ­ing Texas, fail to hon­or Vienna Convention rights for cit­i­zens of oth­er coun­tries, then how can we expect those oth­er coun­tries to pro­tect our own rights?” He con­clud­ed, ​“I hope that Governor Perry and Attorney General Abbott will do the right thing and pro­tect Texas’ integri­ty at the same time, by allow­ing a court to hear Tamayo’s claims of prej­u­dice.” Read the op-ed below.

Perry, Abbott should be true to their word in handling Tamayo case

Posted: 12:55 p.m. Tuesday, Jan. 14, 2014

BY MARK WHITE — SPECIAL TO THE AMERICAN-STATESMAN

As a for­mer Texas gov­er­nor and attor­ney gen­er­al, I know that Texans are proud and hon­or­able peo­ple. As President George W. Bush used to say, ​“In Texas, you’re only as good as your word.” Right now our state and country’s rep­u­ta­tion is rest­ing on the word of two elect­ed offi­cials who I hope will keep Texas’ integri­ty intact. I urge them to ful­fill promis­es they and pre­vi­ous Texas offi­cials made about the cas­es of sev­er­al Mexican nation­als on our death row. One of these is the case of Edgar Tamayo, a Mexican nation­al with men­tal dis­abil­i­ties sched­uled to be exe­cut­ed Jan. 22.

Tamayo is one of ten Mexican nation­als on Texas’ death row who, near­ly a decade ago, were the sub­ject of legal pro­ceed­ings before the International Court of Justice — also known as the World Court. These cas­es caused inter­na­tion­al con­tro­ver­sy because Texas author­i­ties had vio­lat­ed their rights to have the Mexican Consulate noti­fied of their deten­tion under the Vienna Convention on Consular Relations, a treaty the United States became par­ty to more than 40 years ago. This is the same treaty that ordi­nary Americans — and thou­sands of Texans — rely on for pro­tec­tion when they find them­selves in trou­ble over­seas. It’s the treaty that allows all Americans who are detained while trav­el­ing, work­ing or study­ing abroad to con­tact the U.S. Consulate to help defend their rights.

If American states, includ­ing Texas, fail to hon­or Vienna Convention rights for cit­i­zens of oth­er coun­tries, then how can we expect those oth­er coun­tries to pro­tect our own rights? So it’s vital that Texas ful­fill its promis­es regarding Tamayo.

No one dis­agrees that Texas vio­lat­ed the Vienna Convention in the Tamayo case, and oth­ers. And under treaties that the United States agreed to many years ear­li­er, the International Court of Justice has the pow­er to deter­mine the con­se­quences of these vio­la­tions. Ultimately, the court ruled that these Mexican nation­als have a right to a hear­ing to show how con­sular assis­tance would have made a dif­fer­ence in their cas­es. In an ear­li­er case, Bush agreed and direct­ed Texas to pro­vide the nec­es­sary hear­ings — but in 2008, the U.S. Supreme Court said that the pres­i­dent couldn’t force the state to provide them.

Here’s where Governor Rick Perry and Attorney General Greg Abbott decid­ed to do the right thing. In 2008, they wrote to the U.S. Supreme Court, Bush admin­is­tra­tion Secretary of State Condoleezza Rice and Attorney General Michael Mukasey regard­ing this ear­li­er case, promis­ing that Texas would ask the courts to review the Vienna Convention claims of Mexican nation­als whose cas­es were the sub­ject of the International Court of Justice’s deci­sion. Abbott said that his office would ​“join the defense in ask­ing the review­ing court to address the claim” if the courts had not yet done so.

But, as of today, no court has ever reviewed the vio­la­tion of Tamayo’s con­sular rights to see whether the Mexican government’s assis­tance would have made a dif­fer­ence. As it stands now, Tamayo will become the first per­son exe­cut­ed with­out any review of his Vienna Convention claim.

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. The defense request­ed psy­cho­log­i­cal test­ing for him, but a state court denied fund­ing for them. The Mexican Embassy, when it was final­ly informed of Tamayo’s deten­tion, paid for test­ing, but it was too late. Even though the test­ing revealed that Tamayo suf­fers from sig­nif­i­cant psy­cho­log­i­cal dis­or­ders, result­ing from a pre­vi­ous head injury and an IQ of 67, no court ever heard this evi­dence. It is pre­cise­ly the kind of ​“mit­i­gat­ing evi­dence” that might have pre­vent­ed Tamayo from being sen­tenced to death. Perry could direct the Board of Pardons and Paroles to inves­ti­gate the claim, but he hasn’t yet done so.

Why is Texas oppos­ing review of this evi­dence to deter­mine whether it prej­u­diced Tamayo’s case, espe­cial­ly in light of its pre­vi­ous promis­es to at least not oppose requests for review, and per­haps even to join the defense’s request for review?

We Texans are as good as our word. The gov­er­nor and the attor­ney gen­er­al — and Texas itself — have every­thing to gain by keep­ing their promise. Not to hon­or the Vienna Convention in the Tamayo — or any oth­er — case, is to endan­ger the secu­ri­ty of American sol­diers, mis­sion­ar­ies, for­eign exchange stu­dents, Peace Corps vol­un­teers and tourists abroad. I hope that Governor Perry and Attorney General Abbott will do the right thing and pro­tect Texas’ integri­ty at the same time, by allow­ing a court to hear Tamayo’s claims of prejudice.

White served as gov­er­nor of Texas from 1983 to 1987 and as attor­ney gen­er­al of Texas from 1979 to 1983. He co-chairs the Constitution Project’s Death Penalty Committee, which pro­motes fair­er admin­is­tra­tion of cap­i­tal pun­ish­ment. He can be reached at  markwhite@​constitutionproject.​org .

(M. White, ​“Perry, Abbott should be true to their word in han­dling Tamayo case,” Austin American-Statesman, January 14, 2014.) See Foreign Nationals and New Voices.

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