Unfortunate consequence of lack of counsel?

Mexican Mr Edgar Tamayo has been executed by the State of Texas 20 years after he was first arrested for the murder of a police officer.

His execution has placed further strain on the the U.S. Mexican relationship which at the best of times made them uncomfortable bedfellows. He was one of 10 other Mexican nationals (two of which have already been executed) who are on death row. Mr Tamayo was arrested and convicted in 1994 but his case has been the subject of legal wrangling both before the International Criminal Court (ICC) and the U.S. Supreme Court. In 2004 the ICC ruled¹ that he had not been informed of his consular rights. As it is well known the U.S. does not recognise the ICC and is not bound by its decisions. Despite this fact George W. Bush the then president requested that states comply with the decision of the ICC ². Texas, though, successfully argued before the U.S. Supreme Court that the presidential order was not legally binding as the congress had not passed any legislation which would require them to follow it.

Mr Tamayo was the victim of several violations of not only international human rights standards but also the U.S. Constitution when he was not told of his right to seek legal assistance from the Mexican consulate when he was arrested. The U.S. is as a signatory to the Vienna Convention on Consular Relations (1963) which requires them to notify the embassy of the foreign national arrested of their detention. This is a treaty which U.S. citizens avail themselves of and the U.S. expects to be upheld for their nationals when on foreign turf but this act of goodwill they have failed to secure for Mr Tamayo. He did not receive any review of his claim that his consular rights were violated.

It was never really disputed that Mr Tamayo was guilty of the offenses that he was charged with but rather that he was the victim of procedural breaches. The conflict between the crime control and due process models is most apparent here in this case when we consider the question of factual and legal guilt. Over 40 years ago when Herbert L. Packer established his two models of criminal process he stated that there is a gap between what the Is and the Ought. He stated that,

"We learn that very few people get adequate legal representation in the criminal process; we are simultaneously told that the Constitution requires people to be afforded adequate legal representation in the criminal process."

It was argued that Mr Tamayo was not granted this adequate legal representation nor made aware of his right to it at the first available opportunity hence seriously jeopardising his right to a fair trial.

This illustrates that there are significant gaps between how the system ought to practice in theory and how it actually does in reality. His lawyers as well as the Mexican authorities state that the fact that Mr Tamayo was not informed of this right to legal assistance impeded his right to a fair trial and may have even helped to reveal evidence which would have removed him from death row. His lawyers also asserted that Mr Tamayo had intellectual disabilities a factor which should have been taken seriously by the State of Texas. The tragic case of Mr Tamayo illustrates as Packer asserted requires us and the U.S. to ask of itself what is,

" The kind of criminal procedure we have depends importantly on certain value choices that one reflected, explicitly or implicitly in its habitual functioning."

The "value choices" which are referred to are reflected by the decision of the U.S. Supreme Court when it determined that Tamayo could be executed by the State of Texas. Thus undoing the liberalism of the Warren Court.