(This article was published by MintPress on January 31, 2014.)
Edgar Tamayo Arias was strapped in the reclining execution chair of the Texas State Penitentiary in Huntsville on Wednesday night, Jan. 22. The warden asked if Tamayo had any last words, but the convicted cop-killer simply mumbled “no.” It was the last thing the 46-year-old Mexican national ever said before a regimen of drugs designed to end his life was injected into his body.
Witnesses then heard Tamayo give a single snore-like sound before going silent. He was pronounced dead 17 minutes after his execution began.
Tamayo was sentenced to death for the murder of 24-year-old Houston police officer Guy Gaddis. Gaddis had arrested Tamayo and an acquaintance for a robbery, putting Tamayo in handcuffs and in the backseat of his police cruiser. According to court records, the young officer didn’t realize Tamayo had a gun in his waistband, which Tamayo managed to retrieve while handcuffed and used it to shoot Gaddis several times.
“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,” Lucy Nashed, spokeswoman for Texas Governor Rick Perry, told reporters.
However, the Mexican government, international law experts and even U.S. Secretary of State John Kerry, had called on Texas to stop the execution, appealing to the U.S. Supreme Court to intervene due to the fact Tamayo had not been granted communication with the Mexican consulate until a few days before his trial — in contravention of the Vienna Convention on Consular Relations. The Supreme Court refused to stay the execution.
“Tamayo’s execution puts the U.S. in violation of the Charter of the United Nations,” said John Quigley, a professor of international law at Ohio State University who has worked on behalf of other foreign nationals on death row. “The U.S. is party to the treaty, and we are required to carry it out.”
In addition, Quigley noted, the practice puts Americans abroad in danger of suffering similar fates.
A System of Violations
The Vienna Convention was implemented at the U.N. in 1963 and has since been signed by 176 countries including the U.S. and Mexico. Article 36 of the Convention states, “Consular officers shall have the right to visit a national of the sending state who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.”
Tamayo was never told he could contact the consulate before or after his arrest.
The Tamayo case is far from the first time Texas officials — and officials in other states — failed to inform a defendant in a capital punishment case of that right. In fact, by 2003, various jurisdictions in the U.S. had arrested, convicted and sentenced at least 52 Mexican officials alone to death row, prompting Mexico to file a suit before the International Court of Justice.
The ICJ decided the case in favor of Mexico, finding that the U.S. had “violated its international legal obligations to Mexico … of its right of diplomatic, protection of its nationals.”
The court also advised that the U.S. was “under an international legal obligation to carry out” reviews of “proceedings against the 54 Mexican nationals on death row.”
One of the Mexican nationals cited by the ICJ, Carlos Gutierrez, had his sentence reviewed by the Nevada Supreme Court. Gutierrez had been arrested in 1994 and convicted for the murder of his 3-year-old stepdaughter, Mailin, whom he had physically abused for about a year, ostensibly to punish her for sucking her thumb.
The abuse included harsh spanking with a sandal, punching her in the stomach and making her eat chili peppers. When the peppers made the girl vomit, he would make her eat the vomit or submerge her in cold water until she turned blue. According to court records, “after being beaten by Gutierrez, Mailin would apologize for being a bad girl and attempt to hug her tormentor.” The hugs would be rebuffed. On June 15, 1994, after a particular harsh punch to the stomach, Mailin appeared “awkward and dizzy.”
She then “crawled onto Gutierrez’s lap and died.”
Despite previously upholding Gutierrez’s conviction and sentencing, the Nevada Supreme Court found that the ICJ decision demanded a reconsideration. Five justices on the seven-member court found, “Gutierrez arguably suffered actual prejudice due to the lack of consular assistance.”
Gutierrez, they noted, “entered an unusual no-contest plea to first degree-murder,” leaving it to a three-judge panel, rather than a jury, to decide his fate.
The court further determined that had the consulate been able to provide a lawyer, he or she might have forced a trial and countered some of the flaws in the hearing such as questions about his wife’s role, or the fact that his translator lied about being trained as a court interpreter, for which the translator later pled guilty to perjury.
Gutierrez’s death sentence was commuted.
Things did not go as well for Jose Ernesto Medellin in Texas, whose case went to the U.S. Supreme Court and set a precedent that undercut the Vienna Convention. Medellin, another one of the 54 nationals, was convicted along with other “gang members” for the rape and murder of two 14 and 16-year-old girls who were killed to prevent them from identifying the assailants. After his arrest, Medellin signed a confession. According to to police at the time, Medellin “boasted” about having “virgin blood” on his pants and strangling one of the girls with his shoelace.
Federal Government Complicity
Like Gutierrez, there was no trial.
Also like Gutierrez, Medellin appealed. However, the Supreme Court rejected his claim arguing that Texas had no obligation to follow the Vienna Convention since Congress had not itself ratified the treaty.
In a six-page decision dated in 2008, Chief Justice John Roberts wrote, “While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it, or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis.”
Quigley cites the federalist system of government Americans hold dear.
“The U.S. is unusual in that we have a federal system of government with very strong powers for the constituent entities, namely the states,” Quigley explains. “That’s what the Supreme Court relies on.”
However, he notes, the federal government could ensure compliance with the Convention other ways.
“They could have federal judges carry out the reviews,” Quigley said. “Or the president could sue the state of Texas for compliance. There have been other matters they sued the states for, so there is plenty of precedence for that. However, the federal government is simply not willing to tell a state that they have to forgo the death penalty.”
According to the Death Penalty Information Center, 141 foreign nationals still sit on death row, including 59 from Mexico. Many of them were there before the ICJ decision. One of these, Cesar Roberto Fierro, was arrested for the murder of an El Paso taxi drive five months after the incident. Fierro gave a confession that, by many accounts, was coerced by a sheriff who colluded with police in Mexico to have Fierro’s parents arrested and threatened them with torture if he didn’t admit to the crime.
Fierro’s lawyers appealed to the Texas Criminal Court of Appeals. Included in their appeal were statements by both the district court judge and the district attorney that said his sentence should be thrown out. The CCA agreed that the confession was coerced, but added Fierro would have been convicted anyway, and it refused to remand the case for a new trial.
This all concerns Sarah Shourd, who spent 410 days in a prison in Iran after accidentally crossing over the border into the Persian nation while on a hike with friends Shane Bauer and Josh Fattal. For six months, Iranian officials kept her solitary.
“It was extreme horrifying isolation,” she told MintPress. “Had there been consular access from the beginning, that would never have happened.”
While the U.S. does not have official diplomatic relations with Iran, the Embassy of Switzerland serves as protectorate for Americans in Iran. Swiss consular officials were eventually allowed to provide Shourd with warm clothes, books and messages from home, but only after the then-Secretary of State Hillary Clinton called on Iran for access for months.
Shourd argues that U.S. violations of the treaty merely emboldened Iran to violate her rights.
“The Iranian government points out the U.S. reneges on its treaty obligations all the time,” Shourd said. “So why should they have to abide by them? In this case and many others, we’re setting a very poor example, and whatever areas we fail to comply with, they use it to point out our hypocrisy.”