MGR Legal Analysis -
Obama administration urges Texas to grant a stay, but Gov. Rick Perry says no
If all goes according to carefully choreographed procedures at the Huntsville Unit of the Texas State Penitentiary, Édgar Tamayo Arias will draw his last breath sometime on Wednesday, Jan. 22, 2014.
His legal problems may end that day, although not in the way he would like. But those of the United States could just be beginning.
On the evening of Jan. 31, 1994, Tamayo robbed a man outside of a Harris County nightclub. The victim flagged down Houston police officer Guy Gaddis, 24, who was on patrol in the area. Known as a careful officer, Gaddis frisked Tamayo, placed him in handcuffs and loaded him into the rear of his patrol vehicle for transportation to the local precinct house. It would be a routine booking process, by all appearances. But things didn't turn out that way.
While in route, Tamayo managed to pull out a concealed handgun which officer Gaddis inexplicably had not discovered. Tamayo shot Gaddis in the back of the head three times at close range, killing him instantly. The police car careened out of control and crashed into a building. The prisoner, slightly injured, kicked out a rear window and fled. Tamayo was apprehended a few blocks away later that evening, still in the cuffs.
Houston police officer Guy Gaddis. His path crossed Édgar Tamayo's on a chilly January night 20 years ago. Everything changed for both men after a routine street arrest proved to be anything but.
Tamayo was charged with first degree murder, convicted and sentenced to death in a Houston court. His case was so run of the mill that on review, the Texas Court of Criminal Appeals affirmed the conviction and sentence in an unpublished opinion. That means the presiding judges felt the case involved no novel or significant legal issues. Edgar Tamayo has been on death row at Huntsville for most of the last two decades, awaiting execution of sentence. That could come in three weeks.
But for circumstances, Tamayo would be just one more name on Texas' very long death row list, and only one of several scheduled to die in 2014 for crimes which usually were committed years ago. The state is the most prolific civil executioner in the U.S., and its highly experienced capital punishment litigators are skilled at resisting and often defeating last minute efforts to forestall a trip to the aseptic tiled room - the room with the spotless clinician's table, the leather arm and leg restraints and a two way mirror through which stone faced witnesses watch and wait for the inevitable on the other side.
There is a circumstance, however. Edgar Arias Tamayo is a citizen of Mexico, and a court in The Hague, Netherlands says his legal rights were violated after he was arrested that January night so long ago. But will it be enough to stop the executioner?
On Mar. 25, 2008, the United States Supreme Court handed down a watershed international law decision which appears to have sealed Tamayo's fate. Almost six years later, he and his attorneys are still trying to find a way around it. The case, Jose Ernesto Medellín v. State of Texas (full text of opinion below), begins with these words which succinctly frame the legal issue:
"The International Court of Justice (ICJ), located in The Hague, is a tribunal established pursuant to the United Nations Charter to adjudicate disputes between member states. In the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004 I.C.J. 12 (hereafter referred to as Avena), that tribunal considered a claim brought by Mexico against the United States. The ICJ held that, based on violations of the Vienna Convention, 51 named Mexican nationals were entitled to review and reconsideration of their state-court convictions and death sentences in the United States."
Édgar Arias Tamayo was one of the 51 Mexican nationals to which the opinion referred. But like the other 50, his demands that American courts abide the decision of the ICJ rendered almost a decade ago have been repeatedly rebuffed. That's the reason he may die next month. U.S. courts which have reviewed Tamayo's case have time and again said they don't have to obey the ICJ's ruling in Avena.
At the heart of the legal dispute is the failure of Texas state prosecutors to promptly notify Mexican diplomatic officials of Tamayo's arrest in Houston in 1994 - a guaranteed procedural right under the Vienna Convention on Consular Relations (VCCR), to which the United States is a signatory party. Most nations regard compliance with such obligations a very serious matter. In 2013, for example, Mexico's highest tribunal freed two foreigners in unrelated criminal cases - a French woman and a Canadian one - in large part because federal prosecutors had failed to timely notify their countries' embassies after their arrests. The evidence of actual guilt against the two accused was significant, but that didn't deter Mexican judicial ministers from enforcing the requirements of international law (U.N. selects Mexico's Supreme Court for prestigious Defense of Human Rights Award).
Édgar Tamayo came to the United Stated in search of work when he was 19. He was 26 at the time of his arrest. Under section 36 of the VCCR he had the legal right to assistance "without delay" from Mexican consular officials after he was taken into custody in Houston, just as American citizens arrested abroad enjoy the same right to prompt aid from the nearest U.S. diplomatic mission. Mexico knew nothing of his detention until a week before his murder trial began, and that delay was a clear violation of the Vienna Convention. Whether compliance would have spared Tamayo a conviction for murder or his pending trip to the gallows is another question altogether, a factor stressed by courts which have reviewed his case and those involving the other 50 Mexicans. Tamayo's supporters point out, however, that he suffers from a long history of mental and emotional disorders, and was poorly defended at his original trial. Early intervention by competent counsel might have made a difference, at least with respect to the penalty.
Why did the U.S. Supreme Court refuse in the Medellín decision to enforce the ICJ's ruling in Avena, thereby denying the 51 condemned Mexicans a review of their convictions by the state courts where they were found guilty? In language which will surely seem like doublespeak to laymen and lawyers alike, the justices found that Avena - while "an international commitment" on the United States itself - was "not binding domestic law" that obligated the nation's separate states, which have independent judicial systems and rules. Only if the U.S. Congress first adopted implementing legislation directing the states to comply with the mandate of Avena - something which it has not done to date, 10 years after the ICJ ruled - would they be required to obey the Hague court's 2004 decision.
While the Medellín case was pending before the Supreme Court, President George W. Bush issued a memorandum to his attorney general which stated the following:
"I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in Avena, by having State courts give effect to the decision in accordance with general principles of comity in cases filed by 51 Mexican nationals."
The Supreme Court ruled, however, that the memorandum was legally worthless. The president had no authority by mere executive decree to direct the states to do any such thing, it declared.
In 2009 the ICJ supplemented its original opinion in Avena, and held that the obligation which it had imposed on the U.S. in 2004 to review the convictions and death sentences of the Mexicans "must be performed unconditionally; non-performance of it constitutes internationally wrongful conduct." But the words have not yet changed the opinion of any American court, federal or state, which has considered litigation brought by the Mexicans awaiting execution.
The consequences for the United States
In a second U.S. Supreme Court ruling dealing with Avena issues and the ICJ's 2004 decision, a four justice minority of the Court - warning of grave practical effects - wrote this in 2011 [García v. Texas]:
"As the Solicitor General [the lawyer who represents the U.S. government in cases before the high court] points out, [noncompliance with Avena] places the United States in irremediable breach of its international law obligation, with serious repercussions for United States foreign relations, law enforcement and other cooperation with Mexico, and the ability of American citizens traveling abroad to have the benefits of consular assistance in the event of detention. These statements are supported by the government of Mexico's [warning that noncompliance] seriously jeopardizes the ability of Mexico to continue working collaboratively with the United States on a number of joint ventures, including extraditions, mutual judicial assistance and our efforts to strengthen our common border."
Earlier this month U.S. Secretary of State John Kerry wrote a letter to Texas Gov. Rick Perry which said much the same thing, imploring him to stop Tamayo's execution unless and until Texas courts agree to consider whether the Mexican's lack of access to consular assistance after his arrest in 1994 directly impacted the outcome of his case. "We can't ask other countries to afford our citizens consular assistance unless we are prepared to do the same thing," argued Kerry. Perry has refused, saying "Texas will deal in its own way with those who break its laws, in accord with its own rules."
Many legal advocacy groups, including Amnesty International, have demanded a stay in Tamayo's case, arguing that Texas is flouting international law which the U.S. is obliged to enforce. In a sign of mounting concern and displeasure in this country as the execution date approaches, Mexican foreign minister José Antonio Meade also wrote Gov. Perry, suggesting unpleasant diplomatic repercussions if the event comes to pass.
Time and hope are running out for Édgar Tamayo, who has an appointment with the Grim Reaper in less than a month. He and his attorneys are trying to convince some court somewhere to enforce the Avena ruling, now a decade old. But it seems unlikely they will succeed, given the state of the law.
For the named plaintiff in the U.S. Supreme Court case - Jose Ernesto Medellín - all the complicated appeals are long over. Just before 10:00 p.m. on Aug. 5, 2008, less than five months after a majority of the American justices voted not to enforce the ICJ's decision in his case, Medellin entered the cold cinder block room in Huntsville from which the only exit is horizontally. Nine minutes later the former resident of Nuevo Laredo, Tamaulipas was pronounced dead and carried out on a gurney.
On July 7, 2011 the same fate befell Humberto Leal García, and in the same room. His attorneys had presented almost identical arguments to the U.S. Supreme Court, but they lost as well. A majority of the justices rejected García's petition for a writ of habeas corpus - the legal equivalent of a Hail Mary pass, seeking an 11th hour stay of execution - in a terse four page order issued shortly before he was injected with a cocktail of lethal drugs.
Forty-nine of the 51 Avena defendants are still alive. Next month, that number may drop to 48.
Reader notes: In unrelated prosecutions, Texas state juries convicted Jose Medellín and Humberto García of the kidnapping, rape and murder of three teenage girls, sentencing each man to death. The requirement of Article 36(1)(b) of the Vienna Convention on Consular Relations that the detaining state must notify an arrestee's embassy or consulate "without delay" will be satisfied, according to the ICJ, if official notice is provided within three working days. Avena, 2004 I.C.J. 12, 52 at ¶97. Édgar Arias Tamayo confessed to killing Houston police officer Guy Gaddis about three hours after he was taken into custody, and efforts by his defense attorneys to suppress the admission were unsuccessful. Several courts ruled that Tamayo's confession was voluntary and was properly received in evidence during his Harris County murder trial. Largely because of Tamayo's almost immediate admission of the crime, reviewing judges have found that the failure to comply with the VCCR in his case was legal "harmless error." Nonetheless, under the Avena ruling he is still entitled to a hearing on the issue of whether the failure to promptly notify his country prejudiced his defense. Tamayo has never had such a hearing, and Texas insists it will not give him one.
The Supreme Court has rejected the failure to give consular notice defense before, in another death penalty case which ultimately saw two German brothers executed in Arizona. The details are in this report: No justice for Mexicans in Florence Cassez ruling (Jan. 23, 2013).
But not every state has ignored the ICJ decision. In 2012 the Nevada Supreme Court noted that state tribunals are entirely free to comply with it, and should do so when the interests of justice so require. The court argued that Americans traveling or living in foreign countries who face criminal prosecution benefit from strict enforcement of the VCCR.
Apr. 9, 2014 - Texas executes Ramiro Hernández Llanas, over protests
Jan. 22, 2014 - Mexican national, convicted cop killer, executed in Texas
Jan. 7, 2014 - Texas denies Mexican governor's appeal for death stay in Édgar Tamayo case
Dec. 30 - Mexican on death row asks Peña Nieto, State Dept. for help as he prepares for the end
Apr. 19 - Mexican Supreme Court orders Canadian Cynthia Vanier released
Jan. 23 - Mexico's Supreme Court orders Florence Cassez freed
Dec. 22, 2012 - With a little help from his friends, Jon Hammar released
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