Jan. 24
TEXAS:
Texas Shouldn't - BUT JUST DID - Execute a Mexican National
Wednesday, at 9:32 p.m., the state of Texas executed Edgar Arias Tamayo, a
46-year-old Mexican national. Injecting lethal drugs into Mr. Tamayo's
bloodstream was a clear violation of the United States' international
obligations, and yet the state of Texas wasn't deterred.
What's going on here? The short answer: a deadly combination of a blood-thirsty
state and a stalled Congress.
Let's start with the state. Texas' death penalty system is notorious. Despite
well-founded concerns about innocent people ending up on death row, racial
bias, inadequate assistance of counsel, and a whole host of other problems,
Texas has put 509 people to death in the last three decades. These executions
continue despite the fact that 6 other states have repealed the death penalty
in the last 6 years (and 3 other states - Delaware, Nebraska, and Colorado -
have come close). Texas remains one of the reasons that the U.S. is an outlier
among democratic nations, ranking 5th in the world in the number of executions,
after China, Iran, Iraq, and Saudi Arabia.
And now to our stalled Congress. In 2004, the International Court of Justice
(ICJ) found that Mr. Tamayo and 50 other Mexican death row prisoners in the
United States were denied their right to contact their consular representatives
upon their arrest and without delay. This denial violates the Vienna Convention
on Consular Relations, which the United States ratified without reservations in
1969. The ICJ ordered the United States to provide effective "review and
consideration" of their convictions and sentences in order to determine in each
case if the denial of access to consular assistance was prejudicial. The
problem is that the states have been given a free pass to violate this treaty,
as Texas did in executing Mr. Tamayo.
Here's what happened. In 2008, the Supreme Court decided that the Vienna
Convention Optional Protocol concerning the Compulsory Settlement of Disputes
is not self-executing treaty that would have binding effect in the domestic
courts and that the President did not have the authority to enforce the ICJ
decision unilaterally. The Court decided that Congress needs to pass
legislation in order to implement the ICJ judgment. Congress, unsurprisingly,
has dragged its feet. The result: an illegal loophole states are exploiting to
execute foreign nationals in violation of international law.
What Texas did last night was wrong. As long as Texas is part of the Union, it
remains obligated to abide by U.S. international obligations, including
ratified treaties, which are considered the law of the land under the U.S.
Constitution's Supremacy Clause.
But Texas is not the only one who has done something wrong. Just last week,
Senator Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee,
harshly criticized the House of Representatives for rejecting a Senate
provision in the 2014 Consolidated Appropriations Act that would have brought
the U.S. into compliance with the Vienna Consular Convention. He made this
powerful argument:
By not including this provision we jeopardize the essential right of consular
assistance for Americans arrested in foreign countries, and weaken our
credibility was a nation that respects the rule of law.
We couldn't agree more.
Next March, the United States' untenable position on the death penalty will be
subject to a review by the United Nations Human Rights Committee, a body of
independent experts that monitors compliance with the International Covenant on
Civil and Political Rights (ICCPR), a treaty the United States ratified in
1992. In a shadow report to the committee, the ACLU highlighted the system's
many flaws, including the fact that the death penalty is applied in arbitrary
and discriminatory manner without affording vital due process rights, such as
access to effective counsel and the right to remedy to halt executions - not to
mention that methods of execution and death row conditions have been condemned
as cruel, inhuman, or degrading.
The train has left the station. It is only a matter of time until all states
join the evolving international consensus that rejects the legal and moral
foundation of the death penalty. Unfortunately, it will be at higher human cost
and unacceptable flouting of international law.
(source: ACLU)
***************
What Executions Say About the Executioners
State sponsored executions are back in the news again. By the time this column
sees the black of print, 2 men will have been executed in the space of less
than 1 week, 1 in Ohio and 1 in Texas. Neither would be remarkable (except in
the eyes of the decedent and his family) but for what the executions say about
their executioners. In Ohio it is the enthusiasm of the state for getting the
job done and in Texas the duplicity of its governor and attorney general who
permitted the execution to go forward.
On January 16, 2014, the state of Ohio showed the world that the lack of a
proven potion to accomplish the task would not halt the execution of Dennis
McGuire. A lesser state might have postponed the execution because of the
unavailability of drugs that had most recently been used by Ohio when
conducting its executions. The unavailability of death dealing drugs was not
because they were no longer being manufactured. They were unavailable because
their manufacturers refused to sell them to states that used them in
executions.
When Missouri was confronted with the unavailability of propofol, its favored
drug for executions, Missouri postponed a scheduled October 2013 execution
until it could come up with an acceptable substitute. When Texas encountered a
problem in obtaining pentobarbital, the drug it used in execution, state
correction officials forged prescriptions in order to obtain the drug from a
pharmacy. (When the forgery was discovered the pharmacy refused to fill the
prescription.) Unlike Texas and Missouri, Ohio dealt with the problem by being
creative. For many years before Dennis's execution, Ohio had used a 3-drug
combination that performed its assigned task in less than 15 minutes. When
questions were raised as to whether or not it caused the person receiving the
drugs an unconstitutional level of discomfort its use was discontinued and
other drugs were substituted. None of those drugs being currently available, on
January 16, 2014, Ohio killed Dennis by administering a sedative and a
painkiller, a procedure that had never before been used in the United States.
To outward appearances it was not a great success although Dennis did die.
However, during the execution he appeared to be desperately gasping for air and
the procedure took more than twice as long as it had taken when those being
executed received the established death dealing cocktails.
Commenting on the new Ohio procedure, Doug Berman, a law professor and death
penalty expert said:
"[W]hat we now have discovered is Ohio is using a method that gets the job
done, but looks ugly. We don't know if it actually was ugly. We just know that
it looked ugly."
(If Ohio wants to find out if the procedure "actually was ugly" it might
consider giving the person being executed a device with a button to press to
let those watching the execution know if he finds the procedure unpleasant.
That could inform future executions, permitting the state to modify procedures
if appropriate. The inmate might take pleasure in knowing that while dying he
was helping to improve the execution process.)
On January 22, 2014, Texas executed Edgar Tamayo, a Mexican citizen. After
Edgar was arrested and charged, Texas ignored its obligations under the Vienna
Convention on Consular Relations. Under the Convention, foreign nationals who
are arrested and charged with criminal conduct are entitled to have their
Consulates notified of their detention. In 2004 the World Court ruled that
Edgar's rights and the rights of 4 dozen other Mexican nationals awaiting the
death penalty were violated since they had not been properly advised of their
consular rights. In response, President Bush ordered Texas to conduct those
hearings. In 2008 the U.S. Supreme Court ruled that the president lacked the
authority to order Texas to conduct those hearings.
Following the Supreme Court decision, however, Governor Rick Perry and Attorney
General Greg Abbott, both honorable men, wrote the Supreme Court, the Secretary
of State, and the Attorney General of the United States and said Texas would
ask the Texas courts to review the issues raised by the World Court, even
though they were not are required to do so. Sadly, from Edgar's point of view,
Governor Perry forgot to ask Texas courts to consider that question. So did
Greg Abbott who hopes to be Texas???s next governor. Commenting on the
execution, Governor Perry's spokesperson said: "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." Nothing was said about broken
promises.
January 22, 2014, Edgar was executed without a review of his Vienna Convention
claim. As the governor's spokesperson said, Edgar had a jury trial and got the
ultimate penalty. Who cares that Edgar's rights under the Vienna Convention on
Consular Relations were not honored or that the governor and the attorney
general of Texas showed themselves to be men without honor in permitting
Edgar's execution to go forward?
Not Texas.
(source: Christopher Brauchli is a lawyer living in Boulder,
Colorado----Counterpunch.org)
********************
Texas Execution May Put Americans Abroad at Risk
The Texas execution of a Mexican in the Lone Star State may put Americans who
run afoul of the law in foreign countries at greater risk. Texas has executed
Mexican citizen Edgar Tamayo despite pleas from Mexico and Washington. The
46-year-old, jailed 20 years ago for murdering a Houston police officer, was
the 1st of the condemned in Texas to be executed in 2014.
To take pressure off of diplomatic relations with Mexico, U.S. Secretary of
State John Kerry had intervened and asked Texas to delay the execution. The
request was condemned by the officer's family as well as death penalty
supporters.
Gary Gaddis, a brother of the slain officer said, "We're [outside the Texas
execution site] here to remind the public who the true victim is in this crime
and to warn the public that John Kerry has no right to try to chain the lock to
the Supreme Court and turn the keys over to the international community."
In 2004, the judicial body of the United Nations, informally known as the World
Court, ruled that the US was to review the conviction of Tamayo. Also at stake
were the convictions of 50 other Mexican citizens who saw their Vienna
Convention rights violated. A Texas execution faced most of those 50 as well.
Kerry had reached out to Texas Attorney General Greg Abbot seeking a stay of
execution for Tamayo. The Secretary of State's appeal included concerns that
the execution may set a benchmark for how American's are treated overseas.
While Kerry didn't doubt the facts of Tamayo's conviction nor did he express
sympathy for Tamayo, his statement said, "...I am raising because it could
impact the way American citizens are treated in other countries."
Unable to travel to the U.S. to say goodbye, Tamayo's family gathered in
Miacatlan as news of his death was received.
Mexico had objected strongly to the execution. The country claimed that Tamayo
had never been made aware of his legal right to seek help from the Mexican
consulate. In a statement issued earlier in the week, the Mexican government
said that it strongly opposed the execution. The statement went on to say that
any failure by the U.S. to review the case would constitute a violation of
America's obligations under international treaties.
The criticism from the Mexican government and subsequent appeal from the U.S.
State Department followed claims by Tamayo's attorneys that he was not promptly
told he could get assistance from the Mexican consulate after his 1994 arrest.
Records from the trial show that the Mexican consulate became aware of the case
just as the trial began.
Prior to the execution, the U.S. Supreme Court looked at 2 last-ditch appeals
Wednesday. The 1st looked at the problem of Tamayo's mental health and whether
it made him ineligible for execution. The 2nd issue was related to the
consulate matter.
Officer Gaddis, 24 when he was murdered, had been taking Tamayo and another man
to jail from the scene of a robbery. Tamayo, who had hidden a pistol in his
trousers, shot Gaddis three times in the neck and head. Tamayo escaped but was
recaptured close by. Still in the handcuffs Gaddis had put on him, Tamayo was
also wearing the robbery victim's watch and necklace.
The last item on a Facebook page set up for Edgar Tamayo only read:
#EdgarTamayo ya murio a las 9:32 R.I.P.
Danniel
Texas led the country in executions in 2013 with 400 instances. The 2nd most
active death row was in Florida with 38. A Texas execution is conducted with
the injection of a single drug, phenobarbital.
(source: Guardian Liberty Voice)
*************
Foreign law in American courts: Could it jeopardize American constitutional
rights?
[This is one of a set of posts serializing my law review article on this
subject; please see the article for footnotes, and for more details.] To get a
sense of why some people worry - and rightly so, I think - about the use of
foreign law in American constitutional decisionmaking, consider this passage
from Professor Peter J. Spiro's Treaties, International Law, and Constitutional
Rights, 55 Stanford Law Review 1999, 2025-28 (2003) (emphasis added). Professor
Spiro is a supporter of the greater use of international law (here, referring
to international human rights law) in the American legal system, and here's
what he writes:
"[T]his analysis [supporting the use of international law in American courts]
supplies a normative basis for national decisionmakers to rebalance rights. To
take the concrete case, an international norm against hate speech would supply
a basis for prohibiting it, the First Amendment notwithstanding.
"C. Insinuating International Law
"It is unlikely in the extreme that the treatymakers would undertake such a
frontal assault against the supremacy of constitutional rights given the clear
current lack of constitutional authorization to constrain rights on
international law grounds ....
"The analysis is not, however, irrelevant to current constitutional practice,
for it also justifies putting international regimes to work in the context of
constitutional interpretation. This use of international regimes has been
engaged. In U.S. courts, those asserting rights are no longer embarrassed to
deploy international law arguments, as they once were. The United States
Supreme Court is regularly subjected to such arguments, especially from amici
(including foreign government amici). International law is becoming part of the
vocabulary of American constitutional law. Although its doctrinal place remains
unsettled, international law appears poised to make unprecedented inroads in
the making of American constitutional law [giving Atkins v. Virginia as an
example]....
"This battle is now being fully engaged, on academic, judicial, and policy
fronts. Deploying international law as an interpretive tool reflects a
defensive strategy, ostensibly a process of domestication rather than one of
submission. This may mask what is, in fact, a partial displacement of
constitutional hegemony. International law may be a process in which the United
States and U.S. entities participate, but it is not a creature of the
Constitution. On the other hand, resistance and insulation may no longer be
viable options. One can expect more frequent deployment of international norms
as part of the domestic rights discourse. In the long run, international norms
may be played, not merely as persuasive agents, but as trumps.
"Constitutional rights have presented a discursive bulwark against the
encroachment of international law. The continuing refusal to contemplate the
international determination of rights betrays the embedded nationalist
orientation of constitutional theory, and the field of foreign relations law
proves to be no exception. These nationalist assumptions may be conceptually
vulnerable in the face of the changing architecture of international law and
community. Constitutional rights have bowed to the treaty power and the
exigencies of foreign relations as a matter of historical practice, even as the
inviolability of domestic rights interpretation has been set as a matter of
constitutional faith. Accompanying doctrines of constitutional hegemony,
deviations notwithstanding, were justified in a world in which law offered no
protection of individual rights. As the regime of international human rights
grows thick, however, that justification should no longer stand unchallenged.
As transnational society develops a common rights culture, one in which the
disaggregated United States enjoys a voice, the supremacy of international
rights may be normatively sustainable. In the short term, this argues for the
relevance of international norms in domestic constitutional interpretation. In
the long run, it may point to the Constitution's more complete subordination."
Professor Spiro's reasoning suggests that there is cause to be concerned, I
think, about the use of foreign law in defining American constitutional rules.
That's true whether you favor free speech, abortion rights, the right to bear
arms, a strong separation of church and state, or the exclusionary rule - all
areas in which American constitutional law is more government-constraining in
many ways than foreign constitutional law tends to be.
Now there is a longstanding tradition of relying on foreign law in determining
the scope of American constitutional law; whatever is going on here is not some
sharp break with traditional American practice. See, for instance, Steven G.
Calabresi (a cofounder of the Federalist Society) & Stephanie Dotson Zimdahl,
The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and
the Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743, 752-53 (2005);
see also, e.g., United States v. Reynolds, 345 U.S. 1 (1953); Ker v. Illinois,
119 U.S. 436 (1886); Hurtado v. California, 110 U.S. 516 (1884); Knox v. Lee,
79 U.S. (12 Wall.) 457 (1870). And of course courts routinely rely on many
sources, including law review articles or professional groups. If the criticism
of foreign law is that it wasn't enacted by American lawmaking processes, we
should recognize that the authors of those works likewise weren't elected or
appointed by Americans to make law for Americans.
But foreign law is law, and seemingly an expression of public sentiment in
allied and respected countries, not just the views of a few academics or even
of a professional association. Judges therefore may well be more likely to view
foreign law as having moral authority.
Judges may find the arguments of law professors to be persuasive, and they may
find the factual claims of professors who have studied certain fields to be
credible. But they will rarely view the opinions of law professors as having
significant normative authority, especially in deciding whether to strike down
a statute. And recent opinions, especially Roper v. Simmons (involving the
death penalty for murderers who committed their crimes before age 18), suggests
that the Court viewed international practice as normatively authoritative.
At the same time, even Justice Scalia, who has sharply criticized reliance on
foreign law in this context, has concluded that it is proper to use foreign law
in some contexts. One example is Schriro v. Summerlin, which dealt with whether
certain expansions of the right to a jury trial (expansions that Justice Scalia
endorsed) should be applied retroactively on habeas review. Under the Court's
retroactivity jurisprudence, such retroactive application of a procedural rule
would be justified only if it is a "'watershed rule[] of criminal procedure'
implicating the fundamental fairness and accuracy of the criminal proceeding."
And the expansion of the jury trial right, Justice Scalia held (in an opinion
joined by the four other conservative Justices), was not such a watershed rule,
partly because:
"for every argument why juries are more accurate factfinders, there is another
why they are less accurate. The [dissent below] noted several, including
juries' tendency to become confused over legal standards and to be influenced
by emotion or philosophical predisposition. Members of this Court have opined
that judicial sentencing may yield more consistent results because of judges'
greater experience. Finally, the mixed reception that the right to jury trial
has been given in other countries, though irrelevant to the meaning and
continued existence of that right under our Constitution, surely makes it
implausible that judicial factfinding so 'seriously diminishe[s]' accuracy as
to produce an 'impermissibly large risk' of injustice. When so many presumably
reasonable minds continue to disagree over whether juries are better
factfinders at all, we cannot confidently say that judicial factfinding
seriously diminishes accuracy."
So even Justice Scalia is sometimes willing to consult foreign law in crafting
American legal rules. He reasons that such consultation is improper when
determining the "meaning and continued existence" of a constitutional right.
But it is just fine, he concludes, when a court is considering other questions,
such as the nonconstitutionally mandated rules of habeas corpus.
I tentatively agree with Justice Scalia's view that it's not sound to define
the meaning of American constitutional rights with reference to foreign views
of such rights. At the same time, there is little that state legislatures can
do about this. State law cannot directly bind the U.S. Supreme Court in its
interpretation of the U.S. Constitution. And while state law might at times
indirectly influence the Court, by sending a message that some American
institutions disapprove of the use of foreign law, such effects are likely to
be slight.
At the same time, as I'll explain in further posts, excessive rejection of
foreign law by state legislatures can cause lots of problems in much more
mundane fields - tort lawsuits, everyday business contract disputes, family law
adjudication, and more. It would be a mistake for the understandable concern
about foreign law in the Supreme Court???s constitutional decisionmaking to
lead states to ban the use of foreign law more broadly.
(source: Eugene Volokh teaches free speech law, religious freedom law,
church-state relations law, a First Amendment Amicus Brief Clinic, and tort
law, at UCLA School of Law, where he has also often taught copyright law,
criminal law, and a seminar on firearms regulation policy. Before coming to
UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and
for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.
Volokh is the author of the textbooks The First Amendment and Related Statutes
(4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic
Legal Writing (4th ed. 2010), as well as over 70 law review articles;
Washington Post)
*********************
AG Candidates Weigh In on Execution of Mexican National
Wednesday night's execution in Texas of a Mexican national convicted of killing
a Houston police officer has given the candidates vying to be the state's next
attorney general an opportunity to weigh in on the death penalty - revealing
only slight differences in how they might have handled the case.
Texas officials went ahead with Edgar Tamayo's execution despite pressure from
both the Mexican and U.S. governments to delay it. U.S. Secretary of State John
Kerry warned that the execution "could impact the way American citizens are
treated in other countries."
Among the Republicans vying to replace Attorney General Greg Abbott, who is
running for governor, all of them said they would have proceeded with the
execution.
Enrique Marquez, state Rep. Dan Branch's campaign manager, said in an email
that Branch "has never wavered in his belief that the death penalty is a just
punishment for the most heinous crimes." Marquez said that because "there seems
to be no question about Edgar Tamayo's guilt or of the due process," Branch
would also have allowed the execution of Tamayo to go forward.
State Sen. Ken Paxton, R-McKinney, said in an email that Tamayo was "punished
in accordance with state law, which provides for the death penalty." He said
there was no need for a delay.
And Railroad Commissioner Barry Smitherman, who has long favored capital
punishment on the stump, said Texas officials acted properly.
In 2002, during an interview with the Harris County district attorney's office,
where he was hired as a prosecutor, Smitherman apparently led his interviewer
to believe otherwise. "Smitherman is opposed to the death penalty for religious
reasons," notes from his personnel file state. "He said that being pro-life
doesn't 'square with' the death penalty."
Smitherman's campaign said his views had been mischaracterized in the notes.
"Barry supports, and has always supported, the death penalty for the most
heinous and violent criminals," Jared Craighead, Smitherman's campaign manager,
said in an email. "...It is clear that there was a misunderstanding in a short
interview with one person that occurred over a decade ago regarding Barry???s
views on the death penalty."
Only Sam Houston, a Houston attorney and the lone Democrat in the race, said he
would have asked for a delay in the execution. But his personal views on the
death penalty don???t appear to be much different from his Republican
counterparts.
Houston said that in the Tamayo case, he is concerned that violating
international treaties could put Americans in danger abroad and "have further
far-reaching ramifications." He added that he had "no sympathy" for the
offender.
Houston said he believed that the process by which criminals are convicted and
given the ultimate punishment should be carefully scrutinized to make sure no
innocent person is put to death. But if the appropriate legal process is
followed, he said, "I am not personally opposed to the death penalty."
(source: The Texas Tribune)
***************************
Burnet man could face death penalty if convicted of killing his grandfather
Prosecutors are weighing a potential death penalty punishment for a man
indicted in January for allegedly murdering his grandfather.
On Jan. 7, the Burnet County Grand Jury indicted Matthew William Reed, 22, on
capital murder by terror threat/other felony. According to the indictment, Reed
allegedly shot and killed his grandfather Farest "Pete" Elmo Reed, 85, on Nov.
7, 2013, during the course of attempting to rob the elderly man.
Since it is a capital murder charge, one possible punishment is the death
penalty, but 33rd/424th District Attorney Sonny McAfee said he and his staff
are still reviewing the case and circumstances surrounding it.
"It's not easy," McAfee said. "It's a very serious decision. We have to look at
a lot of different aspects."
On Nov. 10, 2013, Burnet County Sheriff's Office investigators responded to a
report of a deceased male at a residence in the 2800 block of Texas 29. Sheriff
W.T. Smith said investigators found the elderly Reed's body in the home with
"obvious trauma to his head."
The suspect allegedly made off with his grandfather's pickup, but officers
spotted him in the vehicle later on Nov. 10. The suspect fled when deputies
attempted to pull him over heading west on Texas 29. He eventually crashed the
vehicle in a pasture in Llano County, where authorities took him into custody.
Matthew Reed was booked into the Burnet County Jail, where he has remained
since his arrest.
According to Elmo Reed's obituary, "he died trying to help his grandson."
McAfee said now that Reed has been indicted, he and his staff will begin
pouring over the information and evidence to decide whether to waive the death
penalty.
"Each time we have a case that's punishable by death, I bring the prosecutors
and investigators together and we talk about the case and if it's one that
warrants the death penalty," McAfee said. "Ultimately, the decision is mine,
but we look at all the factors."
Along with the death penalty, Reed could face up to life in prison.
The suspect is scheduled to be arraigned April 11 in Judge Allan Garrett's
courtroom. Reed is being held on a $750,000 bond.
(source: The Daily Tribune)
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